Lecture 5_ Experts _ the Justice System – Prt 2.pdf

Law, Experts & Justice
Lecture 5:
Experts & the Justice System –Part 2

Law, Experts & Justice:
Agenda
• Problems of Experts with Legal System
• Types of Experts
• Duties and Expectations of Experts

Problems: a system issue?
The objectives of the adversarial and the inquisitorial system are different:
• An inquisitorial system looks for the ‘truth’ as an objective
• An adversarial system judges the strength of the arguments as
presented by the opposing sides (the strongest argument ‘wins’)
Experts in the adversarial system can become ‘support’ for one side or
another rather than providing objective forensic evidence (partisanship)
But the inquisitorial system is not infallible either:
• reliability of the evidence can be questionable but would be less likely to
be challenged
• The examining magistrate/judge could fail to collect all the relevant
evidence (incomplete evidence)

Problems: a scientific issue?
Some problems can arise in either system:
• Uncertainty: Some technical questions may not lend themselves to
clear or exhibiting (yes/no) answers within academic or scientific debate
• Complexity: Some scientific matters may be too complex without
rigorous explanation which cannot be given in the courtroom
• Costliness: Lawyers without technical knowledge questioning experts
with technical knowledge may cost unnecessary time and money and
not resolve the technical issue at stake
The nature of scientific/technical information may not fit the requirements
of the law (which needs clear answers for a variety of reasons)

Alternatives
• Experts acting as an adjudicator (arbitrator)
➢ Experts act as ‘judge’
➢ Already happening; e.g. some Tribunals are constituted of a mix of lawyers,
lay people and experts
➢ Is this a retrograde step? Implications?
• Single joint expert (SJE): ‘an expert instructed to prepare a report for
the court on behalf of two or more of the parties (including the
claimant) to the proceedings’ (Civil Procedure Rules, Part 35)
➢ Moves away from adversarial expert evidence towards evidence which
independently sheds light on the ‘bigger picture’
➢ Strengths? Weaknesses? Implications for the system?
• Screening of expert evidence by a judge (Daubert criteria)
• Screening of expert evidence by the expert community (Frye criteria)

Opinions as Evidence
• Historically, witnesses could not give their opinion; why?
➢ It is the role of the court (judge or jury) to form an opinion
of the case – not witnesses
➢ Courts may be unduly influenced by witnesses who are
partial or powerful
➢ The opinion of ordinary witness with no special knowledge or
expertise is not sufficiently relevant (Hollington [1943])
• An exception: in matters not calling for expertise, an opinion
may be a concise method of conveying perception of facts:
➢ For example, identifying someone in a criminal case
➢ Rather than comprehensively describing who they saw,
witness gives the ‘opinion’ that they saw the defendant

Opinions as Evidence
• Experts are another exception to the rule against opinions
• When giving evidence, experts can give their opinion on a
matter requiring expertise
• Previously, this could not relate to the ‘ultimate issue’ (i.e.
guilt/liability)
• The Criminal Law Revision Committee (1972) and subsequent
cases have concluded that this is no longer the case

Who is an ‘expert’?
In terms of types of witness, there is a distinction between:
• Witnesses of fact: lay witnesses
➢ People who have personally seen/perceived the events giving rise
to the ultimate issue, and have no relevant specialist
knowledge/experience/skill
• Witnesses of opinion: primarily, expert witnesses
➢ People who have not personally seen/perceived the events giving
rise to the ultimate issue; but
➢ Possess relevant knowledge/experience/skill
➢ Which allows them to provide an opinion on/explanation of complex
concepts
➢ Which a judge/jury needs to understand in order to decide on the
ultimate issue

Types of Witness
• A lay witness can only give evidence to tell the
judge or jury what they themselves saw or perceived
• They cannot go on to say what they think this means
in relation to the ultimate issue (an ‘opinion’)
➢ e.g. “ I saw X come out of the bank and midday; so I think this
means he robbed it”
• They cannot draw inferences from facts or speculate
about what this means – this is the court’s role

Types of Witness
• Experts may be drawn from many disciplines:
‘The subjects calling for expertise, which are so diverse as to defy
comprehensive classification, include a variety of medical, psychiatric,
scientific and technological matters, and questions relating to standards of
professional competence’ (Blackstones Criminal Practice 2018)
• Experts can give evidence of:
➢ Opinion, by drawing inferences from facts before the court and
providing an interpretation of the meaning of said facts
➢ Explanation, by explaining the meaning of technical subjects, concept
or words
➢ Fact, by providing observations or descriptions which require expertise

Types of Witness
Experts?
• ‘Men of science’ or ‘persons of special knowledge’ (Lord
Mansfield, Folkes v Chadd)
➢ Not limited to the ‘natural sciences’; for example, Confetti Records v
Warner [2003] required expert evidence to ‘translate’ rap music
• Three broad types:
➢ Scientific: called to educate a court on relevant scientific literature and
knowledge
➢ Clinical: called to provide opinion based primarily on experience and
practise
➢ Consultancy: called by parties to understand technical issues, rather
than provide evidence

What makes an expert?
There are no minimum standards for an ‘expert’ in E&W:
• Experts should be qualified and/or experienced in their field
• The relevant point is not how they gain expertise but demonstrate their
expertise in the relevant field
• There may be controversial areas where judges may be reluctant to
allow certain experts
• This would happen particularly in areas of uncertain methodology
where the expert evidence could cause more confusion than it could
resolve
• The Judge decides what experts can be used if there is a dispute
• Courts need to be scrupulous to ensure that evidence proffered as
expert evidence is based upon specialised experience, knowledge or
study: mere self-certification is insufficient (Atkins [2010])

Expert and ‘loyalty’
• An expert giving evidence ‘for’ one side or another is hired on the
basis that his opinion supports the position of that party
• Engagement of an expert is generally done following an indication
that the expert can give favourable evidence for the client
• This creates a strong expectation of ‘adversarial bias’ in much of the
expert evidence put before the court
• However, the duty of an expert is to the court, not to the hiring
party (which is why an expert can be found to be in contempt of
court – e.g. Dr Asef Zafar, October 2018)
• This is also why the report of an expert must be in writing and
sworn on Oath, and provided to both parties in advance of the trial

Duties and Expectations of Experts
• To understand they are not advocates for either party
➢ the opinions of the expert, not the client, should be provided
➢ they should resist any expectation that their opinion will be
favourable to their client
➢ They are not supposed to be ‘hired guns’
• To uphold their overriding duty to the Court (Criminal and Civil
Procedure Rules)
• To clearly define their area of expertise and not to comment
outside of this; and to identify if they are being asked to do so
• To produce a written report, sworn on Oath, which will be given
in evidence (has a number of requirements)

Duties and Expectations of Experts
• To be available to give evidence in person at the trial and be
questioned about this evidence
• To provide honest, objective, and unbiased opinions, expressed
in as concise and clear a manner as possible
• Where there is not a yes/no answer, to point out any
qualification to their answer and do so clearly and briefly
• To answer all questions without regard to the consequences (for
the expert or any party)
• To be ready to change their opinion as the case progresses,
particularly where they come to the conclusion that their opinion
is not as soundly based as they first thought

Bad Experts
• Previous cases provide us with examples of bad practice in terms of expert
evidence
• These generally attract high profile media attention when the problems are
revisited on appeal, and may cause miscarriages of justice
➢ The presentation theories, hypotheses, or techniques which are untested or
unreliable (Robb [1991])
➢ To use the court as a forum to demonstrate expertise for its own sake
➢ To introduce unfounded evidence, rather than the provision of opinion based on
established evidence
➢ Introducing excessive technicality or bias to confuse or deliberately manipulate
proceedings (Van Oord [2015])
➢ Knowingly or recklessly straying beyond the expert’s area of expertise (Sally
Clark [2003])
➢ To deliberately or carelessly adopt the position of the client (Van Oord [2015])
➢ To misleadingly purport to be an expert or specialist (Pabon [2018])

Government Review
• As a result of bad practice, the law on expert
evidence was subjected to major review
• The Law Commission review identified:
➢ Evidence that was not as certain as it sounded (e.g.
in R v Dallagher)
➢ Evidence that was never based on any objectively
verifiable scientific findings (e.g. Sally Clark and R v
Cannings)

Giving Expert Evidence in Court
• Examination-in-Chief (EIC – questioned by their own ‘side’)
• Cross-examination (question by the other ‘side’) - adversarial
• In EIC, a Barrister or Higher Court Advocate (HCA):
➢ adduces the evidence (that is, raising information as proof of an argument)
➢ undertakes a persuasive walk-through of the evidence with the expert to
draw out points favourable to their client
➢ Closed questions are asked (i.e. yes/no); leading questions should not be
asked during the EIC (unless the witness is hostile)
• Cross-examination:
➢ Barrister/HCA for opposing side conducts
➢ Leading and open questions are asked
➢ Objective: discredit evidence that does not support the opposition case
➢ Questions may try to discredit qualifications, experience or competence;
adduce contradictory materials; confuse and try to ‘trip up’ the witness.

Giving Expert Evidence in Court
Good expert evidence:
1. Be clear in the language used so that everyone in the court can understand what
is being said
2. Explain how conclusions are drawn. In other words, experts should explain the
link between the evidence and conclusions/opinions (i.e. their workings)
3. Separate absolute statements from qualified statements, and fact from opinion
4. Use examples to illustrate the points made
Bad expert evidence:
1. Dogmatic/confirmation bias (sticking to a point without appropriate evidence to
support it, rather than accepting alternative explanations or misinterpretations)
2. Aggressive answers or manner (although assertive is positive)
3. Uncertain testimony (when experts change their mind in a way which is not
explicable to the court even if technically correct – i.e. give an explanation)
4. Overly complex, lengthy or unnecessarily technical evidence

Do experts control the court?
• In theory, no:
➢ the expert is simply there to clarify a technical issue
related to evidence
➢ The ultimate issue remains a matter for the
judge/jury
➢ Experts should be part of, but not have control over,
the process
➢ They are guided by Counsel (Barristers/HCAs) who in
turn are guided by procedure rules

Do experts control the court?
‘No practising lawyer should underestimate the difficulty involved in
preparing and mounting an effective challenge to a well-prepared
expert’s evidence... With the power which an expert has to
influence the decision of a fact-finding tribunal, whether judge or
jury, goes responsibility. As some controversial cases have shown,
the abuse by an expert of the power which he or she is given can
cause serious harm and injustice’ (Lord Hodge, October 2017)
• Experts have influence and clout – which they can misuse
• Experts have the prestige of their status; this can influence
juries (who do not explain why they have made a decision)
• An expert can appeal to the Judge if they feel they have not
been allowed to properly and meaningfully state their opinion

Criminal defence experts
Defence experts may consider themselves compromised because
they have not been involved from the outset of a case:
• To some extent they are reliant upon experts present at an
earlier stage for case preparation (e.g. police forensics)
• Time and cost constraints may prevent a defence expert from
having equal access to an undisturbed crime scene
• ‘Second hand’ access to charts, diagrams, x-rays, photographs,
samples, contemporaneous notes, etc.
• How does a defence expert know that he has been given all the
relevant evidence? A problem of disclosure (e.g. Liam Allan)
• Can they rely on the evidence? (e.g. Randox Testing Scandal)

The role of experts
The primary role of experts in the modern adversarial system has
been:
To clarify technical evidence or issues for one side or the
other to enable them to present their case strongly
More recently, experts have assumed a more neutral position, and
in many cases a joint expert (Single Joint Expert - SJE) will be
appointed.

Reform: Joint experts
Although there is arguably less chance of bias by using a joint
expert (SJE) this type of expert has its own problems:
• It may be unsuitable in particularly sensitive cases;
• Some litigants may not be able to afford the cost of an expert – who
should bear the cost of a shared expert?
• What happens in respect of crime scene forensic evidence collected on
behalf of the police and passed to defence lawyers ‘second hand’?
• Is this a return to ‘trial by expert’? If only one expert is used there is no
debate over their opinion – does this not go against the way in which
the adversarial system is supposed to operate?
• Will this deepen the problem of judges/juries accepting evidence as
‘fact’?

Other possible reforms
• Experts could only appear with leave of the court who would
‘vet’ experts before they are allowed to appear
• The number of experts is limited in relation to any one question
• A pre-hearing meeting of experts takes place to try to agree on
as many issues as possible and to clarify areas of
agreement/disagreement before the trial
• Appointment by the Court of a single expert appointed from an
approved panel (approved by whom?)
• ‘Hot-tubbing’ – where experts are sworn in together and
question each other during the trial (E&W model)

Summary of the issues
• The expert is there to ‘assist’; not to ‘solve the case;
• It raises difficult issues in relation to ‘fact’ and
‘opinion’
• The use of experts can be problematic and
controversial
• Although their role is intended to be one of
clarification, in some situations, the use of experts
can have the opposite effect
• Next week we consider the legal regulations relevant
to experts when they give evidence in court

Lecture 5_ Experts _ the Justice System – Prt 2.pdf

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