This document summarizes the changing role of expert witnesses in court. It discusses how expert witnesses are traditionally expected to say whatever can reasonably support the client's position, rather than provide objective assistance. Courts have begun taking a more aggressive role in screening out "junk" testimony. One reform is the "gatekeeper" role of judges to exclude dubious expertise, based on criteria like testing and peer review. However, studies show judges rarely discuss these criteria and more often simply rule evidence is irrelevant or unhelpful. There is a clash between the legal system's need for clear conclusions and experts' views that reliability exists on a continuum, not as binary categories. Through cross-examination, junk science is sometimes detected, but high-profile wrong

1. INTERNATIONAL ASSOCIATION OF PROCEDURAL LAW, 2009 TORONTO CONFERENCE
DO NOT CITE OR REPRODUCE WITHOUT PERMISSION
The Changing Role of the Expert Witness
by Justice Ian Binnie∗
In theory, the expert witness is called upon to provide objective assistance to the
court. In practice, at least in our jurisdiction, the expert has traditionally been expected by
members of the bar to say whatever can reasonably be said on behalf of the client who
provided the retainer. One expert, made cynical by his exposure to the legal profession,
suggested that in his experience expert witnesses are
chosen not for their wisdom or sagacity but for their willingness to say in the simplest,
clearest, least tentative way what a particular side wants said.1
The tension between the theory and the reality of expert testimony has resulted in
courts taking an increasingly aggressive role in trying to identify and exclude “junk”
testimony, or, in the alternative at least making life more difficult for dodgy purveyors of
the serious arts and sciences. Many experts welcome the change. They have long been
uncomfortable with the role of cheerleader for one side, or as it was voiced by a reputable
historian chastened by his experience in the witness box:
It is not that we were engaged in formulating lies; there was nothing as crude and naive
as that. But we were using facts, emphasizing facts, bearing down on facts, sliding off
facts, quietly ignoring facts and, above all, interpreting facts in a way to do what
Marshall said we had to do - ‘to get by those boys down there’.2
The use and misuse of experts is in part a byproduct of the adversarial system. The
theory has always been that a trial of fiercely contending positions will ultimately reveal
the truth, a theory not unlike Adam Smith’s vision of the Invisible Hand, which guides its
warring participants towards production of the optimum result.3 In courtrooms, as well as
in the investment banking business, the thought has belatedly occurred to people that the
Invisible Hand has its limitations as a control mechanism. As a result a number of
reforms have been tried, with mixed success.
I. THE JUDGE AS GATEKEEPER
A good example is the “gatekeeper” role thrust on judges to exclude dubious
expertise from the courtroom rather than letting everything go in subject to arguments
about “weight”. This reform is generally attributed to the decision of the U.S. Supreme
Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) where the
∗
Of the Supreme Court of Canada. I would like to acknowledge the valued assistance of Jean-
Michel Boudreau, a former law clerk, who did much helpful research on these matters.
1
J. Morgan Kousser, “Are Expert Witnesses Whores? Reflections on Objectivity in Scholarship
and Expert Witnessing” (Winter 1984) 6 The Public Historian 5.
2
Paul Soifer, “The Litigation Historian: Objectivity, Responsibility and Sources” (Spring 1983) 5
The Public Historian 47 at 52 citing Ernest R. May, Lessons of the Past: The Use and Misuse of History in
American Foreign Policy (New York: Oxford University Press, 1973) at p. 189.
3
See Kousser, footnote 2 at p. 15.

2. INTERNATIONAL ASSOCIATION OF PROCEDURAL LAW, 2009 TORONTO CONFERENCE
Court suggested four non-exclusive factors that could be considered when assessing the
reliability of scientific evidence, namely (1) whether the theory or technique can be used
and has been tested; (2) whether the theory or technique has been subjected to peer
review and publication; (3) the known or potential rate of error (“falsifiability”) or the
existence of standards; and, (4) whether the theory or technique used has been generally
accepted (p. 594). A fifth criteria, probably too obvious to belabour, is that the expert
should stick within the boundaries of his or her expertise.
In a subsequent case the U.S. Supreme Court extended the Daubert approach to non-
scientific expert evidence when to do so would be helpful in determining the reliability of
any sort of expert testimony.4 A similar approach is followed in Canada.5
Requiring judges who possess the usual liberal arts background to understand science
and technology (or financial derivatives or credit swaps for that matter) rather than
merely listen to someone talk about these things has proven to be an uphill battle.
In 2001, the RAND Institute for Civil Justice issued a report analyzing trends in 399
U.S. federal district court opinions issued between January 1980 and June 1999.6
Overall, the study showed there was a significant rise in the proportion of evidence
excluded, which suggested the “gatekeeper” technique has had some success in keeping
out the worst of junk science. However, another study conducted by the Federal Judicial
Centre concerning the impact of Daubert found that only about 18% of judges who
excluded evidence did so based on a finding that the methods and principles of the expert
were unreliable.7 It seems U.S. judges rarely discuss the Daubert criteria. Their concerns
about general acceptance, peer review and insufficient testing of the methodology served
to exclude testimony less than 8% of the time. Falsifiability and error rates were
discussed in less than 2% of the cases studied. Interestingly, most judges simply
announced that the evidence was “not relevant, the witness was not qualified, or the
testimony would not have assisted the trier of fact.” Other U.S. studies are to similar
effect.8
I am not aware of any similarly broad based studies done in Canada. Anecdotally,
however, the conventional wisdom is that judges here are equally reluctant to stop
“expert” evidence at “the gate”. Undoubtedly, the ever-present prospect of a appeal may
lead some judges to err on the side of admitting borderline evidence, but another
difficulty may be that the “gatekeeper” function requires judges to understand the
technical basis of the evidence before deciding whether or not to exclude it. Professor
Susan Haack writes that she is:
4
Kumho Tire Co. V. Carmichael, 526 U.S. 137 (1999); see also General Electric Co. v. Joiner, 522
U.S. 136 (1997).
5
R. v. Mohan, [1994] 2 S.C.R. 9; R. v. J.-L.J., [2000] 2 S.C.R. 60.
6
L. Dixon and B. Gill, “Changes in the Standards for Admitting Expert Evidence in Federal Civil
Cases Since the Daubert Decision” (September, 2002) 8 Psych. Publ. Pol. and L.
7
C. Krafta, M.A. Dunn, M.T. Johnson, J.S. Cecil and D. Miletich, “Judge and Attorney
Experiences, Practices and Concerns Regarding Expert Testimony in Federal Civil Trials” (2002) 8
Psychol. Pub. Pol’y & L. 309.
8
See e.g. J.L. Groscup, S.D. Penrod, C.A. Studebaker, M.T. Huss and K.M. O’Neil, “The Effects of
Daubert on the Admissibility of Expert Testimony in State and Federal Criminal Cases” (2002) 8 Psychol.
Pub. Pol’y & L. 339; E.K. Cheng and A.H. Yoon, “Does Frye or Daubert matter? A Study of Scientific
Admissibility Standards” (2005) 91 Va. L. Rev. 471.
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3. CONFERENCE DRAFT – DO NOT CITE OR REPRODUCE WITHOUT PERMISSION
... a little worried about the danger of giving judges the false impression that they are
qualified to make subtle scientific determinations, when it is hardly realistic to expect
that a few hours in a science seminar will transform judges into scientists competent to
make subtle and sophisticated scientific judgments – any more than a few hours in a
legal seminar could transform scientists into judges competent to make subtle and
sophisticated legal determinations.9
I suggest that the problem is as much and probably more frequently that the judge
suffers from a crisis of confidence rather than an excess of it.
II. A CLASH OF PROFESSIONAL CULTURES
Many experts are aghast that the courts are required to classify science (and other
areas of expertise) as either “reliable” or “junk”, whereas experts are inclined to believe
that reliability is better conceived of as a continuum. As one of our learned Ontario
judges put it:
There is a continuum of reliability in matters of science from near certainty in physical
sciences to the far end of the spectrum inhabited by junk science and opinion akin to
sorcery or magic.10
A good example of failure in the gatekeeping function is R. v. Dimitrov (2003) 68 OR
(3d) 641 (Ont. C.A.), where a trial judge allowed the Crown to lead identification
evidence described as “barefoot morphology”, in which an “expert” purports to identify
suspects by the imprint of his or her feet (socks or no socks) inside shoes or boots, despite
the lack of any serious testing of the methodology, peer review, established criteria or
error rates.
The reality is that reliability is never addressed as an abstract proposition but is
always in relation to the potential effect of the evidence on the outcome of the case. This
presupposes that reliability is a question of degree and that the required threshold will be
assessed relative to the circumstances of a particular case. Evidence which, in all
likelihood, would have a considerable effect on the disposition of the case ought to be
required to meet a greater reliability threshold in order to be admitted. In Dimitrov, for
example, the suspect evidence of “barefoot morphology” was critical to the identification
of the alleged murderer and ought to have been stopped at the gate. Its prejudice
overwhelmingly outweighed any probative value. It is unfair (and too easy) for a trial
judge simply to say, “let the jury decide if this stuff makes any sense”.
The problem for the gatekeeper is to assess how far along that continuum of
reliability the evidence has to proceed before reaching the tipping point of admissibility.
As observed by Chief Justice Rehnquist, dissenting in Daubert:
I defer to no one in my confidence in federal judges; but I am at a loss to know what is
meant when it is said that the scientific status of a theory depends on its “falsifiability”,
and I suspect some of them will be, too.11
9
See Susan Haack, “Trial and Error: The Supreme Court’s philosophy of Science” in American
Journal of Public Health S66, reproduced in (2006) The International Society of Barristers Quarterly 376 at
p. 378.
10
R. v. J.E.T. [1994] O.J. No. 3067 per Hill J., at para. 75.
11
Daubert at 601. On the issue of “Falsifiability”, one study claimed that of 400 judges interviewed,
only 6% had a clear understanding of the concept, while only 4% really grasped the notion of error rates,
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4. INTERNATIONAL ASSOCIATION OF PROCEDURAL LAW, 2009 TORONTO CONFERENCE
The scepticism experienced by many experts about the judiciary’s apparent binary
view of reliability – the evidence is either admitted or it is excluded – is matched by their
distaste for the necessity of reaching a settled conclusion (at least for the purposes of the
lawsuit) upon a matter of expert controversy which in their view is far from settled. This
distaste is not limited to scientists, and was noted by the trial judge in a major Canadian
aboriginal rights case who expressed some sympathy for historians made wretched on the
wheel of litigation:
...historical facts are always open to dispute and revision and history is frequently being
rewritten. Testimony in litigation, on the other hand, once admitted into evidence and
interpreted by a court, becomes fixed inter-partes even through the same evidence out of
the context of the litigation could, as an intellectual exercise, be given a different
interpretation by subsequent scholars or upon other facts emerging to change the
context... . [M]y answer to ... [this] submission is simply that we legal people have our
own discipline and I think we must stick with it.12
Even less sympathetic to experts was the view expressed by Mr. Justice Muldoon of
the Federal Court of Canada in delivering judgment in Unilever PLC v. Procter &
Gamble Inc. (1993), C.P.R. (3rd) 479, at pp. 488-89 dealing with a patent dispute that,
after several weeks of largely expert evidence, he professed not to have understood at all:
Expert witnesses - called because, one supposes, of their eminence in the chemical
science in which they proudly purport to be expert - are a large hindrance rather than
much help because, of course, they are paid to contradict the eminent scientists on the
opposite side ... A judge unschooled in the arcane subject is at difficulty to know which
of the disparate, solemnly mouthed and hotly contended ‘scientific verities’ is, or are,
plausible. Is the eminent scientific expert with the shifty eyes and poor demeanour the
one whose ‘scientific verities’ are not credible? Cross examination is said to be the great
engine for getting at the truth, but when the unschooled judge cannot perceive the truth,
if he or she ever hears it, among all the chemical or other scientific baffle gab, is it not a
solemn exercise in silliness?
Stripped of its colourful language, Justice Muldoon makes an important point: by
what criteria do trial judges really assess expert testimony? Is it based on what is said or
how it is said or who says it?
III. THROUGH THE GATE IS ONLY THE BEGINNING
Junk science is sometimes easier to detect than “real science” incompetently
presented. In Ontario we have recently had the scandal of a string of wrongful
convictions judged by a judicial inquiry to be largely the fault of a crusading Crown
pathologist by the name of Dr. Charles Smith. The inquiry, conducted by Justice Stephen
Goudge of the Ontario Court of Appeal, found that Dr. Smith was poorly trained,
see S. Gatowski, S. Dobbin, J.T. Richardson, G. Ginsburg, M. Merlino and V. Dahir, “Asking the
Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post Daubert World” (2001)
25 Law and Human Behaviour 433. But note, D.S. Caudill and L.S. LaRue “Why Judges Applying the
Daubert Trilogy Need to Know About the Social, Institutional, and Rhetorical – and not just the
Methodological – Aspects of Science”, (December 2003) 45 B.C. L. Rev. 1 at 8 are highly critical of this
study. They think that the study asked the wrong questions and that the methodology was flawed.
12
Delgamuukw v. British Columbia (1987), 40 D.L.R. (4th) 685, at pp. 689-90
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5. CONFERENCE DRAFT – DO NOT CITE OR REPRODUCE WITHOUT PERMISSION
chronically disorganized, arrogant and incompetent13, yet his overbearing expert
testimony ran largely unchecked in the Ontario courts for over a decade. As a result of his
inquiry Justice Goudge recommended that 142 of the cases in which Dr. Smith testified
should be reviewed to investigate potential errors and miscarriages of justice. In one case
a mother was committed to trial charged with murder for allegedly stabbing her daughter
repeatedly with a knife. The “stab wounds” were later shown to be the result of a savage
attack by a pit bull terrier, as the mother had repeatedly protested.14 In another case a
man spent 12 years in prison for allegedly strangling and sexually assaulting his niece,
based on Dr. Smith’s evidence, which Dr. Smith later recanted (prompted by an
independent investigation by outside experts who rejected his conclusions) and for which
he belatedly apologized. In neither of these cases did the trial process, of which the legal
community is so proud, succeed in exposing the quackery of the expert testimony.15
Another remarkable instance of the potential for the miscarriage of justice created by
careless science is the wrongful conviction of Guy Paul Morin. On December 31, 1984,
the body of nine year old Christine Jessop was found in a field east of Toronto. She had
been missing for three months. The autopsy determined that she had been sexually
assaulted and died from multiple stab wounds to the chest. Almost four months later, Mr.
Morin, a next-door neighbour, was arrested and tried for her murder. At his second trial
in July 1992, Mr. Morin was convicted. Eventually in 1995, DNA typing, introduced as
fresh evidence before the Ontario Court of Appeal, caused the Crown to concede that Mr.
Morin was innocent of Christine Jessop’s murder.
Two pieces of forensic evidence had made a major contribution to Mr. Morin’s
conviction. First, a single dark hair was found on Christine Jessop’s body embedded in
skin tissue and her necklace. This “necklace hair”, as it came to be known, was thought to
belong to the killer. Secondly, fibers were gathered from Mr. Morin’s car and it was
submitted by the Crown that these fibers “matched” Christine Jessop’s clothing, therefore
suggesting that she was quite possibly transported in that vehicle from the point of
abduction to the location where she was murdered. The fiber evidence tendered by the
Crown at the second trial was supposedly based on a study entitled The Significance of
Fibers Found on Car Seats conducted by two respected English forensic scientists, Roger
Cook and Graham Jackson.
Following Mr. Morin’s eventual exoneration by DNA evidence16, the government of
Ontario established the Kaufman Inquiry, presided over by a retired judge of the Quebec
Court of Appeal, which heard from one of the co-authors of the fiber study, Roger Cook.
He testified that the fiber examinations performed in Mr. Morin’s case were “unusual,
13
Stephen T. Goudge, Inquiry into Pediatric Pathology in Ontario: Report, Vol. 1: Executive
Summary (Toronto: Ontario Minister of the Attorney General, 2008), at pp. 16-18.
14
Goudge Report, Executive Summary, at p. 26.
15
Goudge Report, Executive Summary, at p. 5.
16
Earlier attempts at typing the DNA of blood and semen stains found on Christine Jessop’s
underpants had failed repeatedly between 1988 and 1991. Due to prolonged exposure to the elements, the
samples had degraded and the method used at the time was not sufficiently developed to obtain conclusive
results. On January 19, 1995, three scientists (one appointed by the Crown, one appointed by the defence
and the third by the other two) were successful in typing the DNA from the deteriorated sample and
concluded that the sperm recovered from the underpants could not have originated from Guy Paul Morin
[Kaufman 79]. With the consent of both parties, these findings were presented as fresh evidence to the
Court of Appeal and resulted in Mr. Morin’s acquittal.
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6. INTERNATIONAL ASSOCIATION OF PROCEDURAL LAW, 2009 TORONTO CONFERENCE
inappropriate and dangerous”.17 The Commissioner, The Honourable Fred Kaufman,
concluded that the study was “seriously misused” and “likely misled the jury”.18
Properly understood, the study had no relevance at all to the Morin situation. Since the
Morin and Jessop families were neighbours, some innocent transfer of fibers was to be
expected. In fact, the Kaufman Report stated that the fiber similarities, even if they had
not been the product of contamination (which they were), “proved nothing”.19
Similarly, forensic evidence based on the necklace hair only showed the Mr. Morin
could not be positively excluded as the source of the hair. In his recommendations, the
Commissioner declared that since such evidence was “unlikely to have sufficient
probative value to justify its reception at a criminal trial as circumstantial evidence of
guilt”, trial judges should undertake a “more critical analysis of its admissibility”20.
Commissioner Kaufman concluded that:
There is no doubt that their hair and fiber evidence was crucial to the decision to arrest
Guy Paul Morin; its presentation to the jury at the second trial undoubtedly contributed
to Mr. Morin’s wrongful conviction.21
It seems evident that if the Courts are to continue to offer themselves as a credible
source of dispute resolution, the traditional rather amateurish way of receiving and
assessing expert evidence will have to be modified and improved.
IV. THE TEST FOR ADMISSIBILITY
The legal framework for the reception of expert evidence is fairly straight forward
and ought to be workable. In this country the criteria are relevance, reliability and
necessity measured against the counterweights of time, prejudice and confusion.22
Evidence is relevant “where it has some tendency as a matter of logic and human
experience to make the proposition for which it is advanced more likely than that
proposition would appear to be in the absence of that evidence.23 This, taken alone,
provides a fairly low threshold, but in the case of expert evidence (at least) is qualified by
the rule that evidence whose prejudice exceeds its probative value should be excluded.
Relevance presupposes reliability, as “unreliable” expert evidence advances nothing
except confusion. The expert evidence in question must be necessary “in the sense that it
provides information, ‘which is likely to be outside the experience and knowledge of a
judge or jury’, . . . the evidence must be necessary to enable the trier of fact to appreciate
the matters in issue due to their technical nature”. This calls for a cost-benefit analysis to
determine “whether its value is worth what it costs” in terms of its impact on the trial
process. In some cases expert evidence of peripheral value has consumed trial time vastly
disproportionate to its usefulness.
17
Kaufman, Fred, The Commission on Proceedings Involving Guy Paul Morin: Report,
Recommendations (Toronto, Ontario Minister of the Attorney General, 1998), at p. 111.
18
Kaufman, at p. 119.
19
Kaufman, at p. 93.
20
Kaufman, at p. 312.
21
Kaufman, at p. 83.
22
R. v. Mohan, [1994] 2 S.C.R. 9, R. v. J.-L.J., [2002] 2 S.C.R. 600, R.J. Delisle, “The Admissibility
of Expert Evidence: A New Caution Base on General Principles” (1994), 29 C.R. (4th) 267.
23
J.-L.J., supra note 6 at para. 56, citing Mohan at 23.
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Judges cannot simply defer to consensus in the scientific community because science
and technology are often moving too quickly for a “consensus” to form before the issue
reaches the courts. In an earlier era common law judges frequently took refuge in a theory
of “general acceptance” in the science or art to which the evidence belonged. In Frye v.
United States, 293 F. 1013 (D.C. Cir. 1923) for example, the defendant was accused of
murder and offered the results of a systolic blood pressure description test, a precursor to
the polygraph, as evidence of his innocence.24 This was a novel technique at the time and
no community of experts had yet emerged to support its reliability. The Court held that
expert testimony was admissible only when the scientific principle or technique from
which it was deduced had gained general acceptance in the particular field in which it
belonged. General acceptance is not only slow but it has other limitations. As our Court
noted in R. v. J.-L.J., at one point in the not too distant past, the highest authorities in the
western world were agreed that the world was flat. (para. 34)
Moreover, some areas of claimed expertise are more easily validated and reproduced
than others. DNA methodologies, for example, lend themselves more easily to testing,
critique and the generation of error rates than do theories in the “softer” sciences, such as
psychology.
If the courts cannot defer to “general acceptance” in the relevant scientific
community, and yet have experienced considerable difficulty themselves in coming to
grips with various fast-moving fields of science and technology, as well as high finance
and other fields of expertise, it becomes apparent that steps must be taken to modify both
the way in which expert evidence is given and assessed, as well as the professionalism of
some of those called on to give the evidence. What is required, in short, is a collective
recognition by both the legal community and the various professional bodies
representing different fields of expertise, of the problems now confronting the trial courts,
and a cooperative attempt to bring about a measure of institutional reform.
V. STANDARDS OF PROFESSIONALISM
I referred at the outset to the concept of the expert as gladiator. This concept was
nicely captured by Professor Kousser:
“Lawyers see the topic from a different vantage point. If my experience with them is at
all representative, attorneys tend to believe that their own experts are pure, even to the
point of being too prissy to agree to state their own conclusions in a way which would be
most helpful to the lawyers’ clients — while the other side’s are merely lying for
money.”25
The Goudge Inquiry, on the other hand, was impressed with the Code of Practice and
Performance Standards for Forensic Pathologists in England and Wales which provides
for a much higher level of candour and disclosure by the expert witness than we are used
to, including an obligation to declare (if I may paraphrase):
24
See the commentary in L. Moresk, “Get on Board for the Ride of Your Life! The Ups, the Downs,
the Twists, and the Turns of Applicability of the ‘Gatekeeper’ Function to Scientific and Non-Scientific
Expert Evidence: Kumho’s Expansion of Daubert” (2001) 34 Akron L. Rev. 689 at p. 694.
25
See footnote 2, at p. 6.
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8. INTERNATIONAL ASSOCIATION OF PROCEDURAL LAW, 2009 TORONTO CONFERENCE
(a) details of academic and professional qualifications, experience, and accreditation
relevant to the opinions expressed, as well as the range and extent of this expertise
and any relevant limitations on it;
(b) the levels of confidence or certainty with which the opinions are expressed;
(c) any alternative explanations that are raised by the case problem with an analysis
of why these alternative explanations can or cannot be ruled out;
(d) what the expert has to say that is relevant to the live or pertinent issues in the case;
(e) any area of controversy that may be relevant to the opinions, and placing the
opinions in that context;
(f) any limits of the science or technology or “art” relevant to the particular opinions;
(g) any other expert opinions relied upon informing the expert opinion; and
(h) the facts found and the reasoning process that was followed, leading to the
opinions expressed. (emphasis added)
This calls for increased professional candour (almost a checklist for cross
examination by opposing counsel) should be accompanied by strengthened professional
associations of the forensic wing of various areas of expertise. Dr. Smith, for example,
claimed to have had little understanding of his role in court. He told the Goudge Inquiry
that
In the very beginning, when I went to court on the few occasions in the 1980's, I
honestly believed it was my role to support the Crown Attorney. I was there to make a
case look good. That’s the way I felt.26
Justice Goudge recommended that experts would benefit from increased
professionalism and education, an enhanced awareness of the risks of confirmation bias,
the promotion of an evidence-based culture, complete transparency concerning both what
evidence is communicated to the expert and what parts of the evidence are relied upon to
form the opinion.27 His analysis is a valuable contribution to much needed reform not
only in the field for forensic pathology but for expert testimony more broadly.
VI. LEGAL EDUCATION
Much greater effort is required in both the general and particularized education of
judges and lawyers is overdue. The National Judicial Institute has taken the lead to bring
groups of Canadian judges together to explore scientific concepts and subjects that may
give rise to litigation. Some of the law societies have developed similar programs for
lawyers. As Secretary of State Donald Rumsfeld memorably pointed out some years ago,
danger lurks not only in the things we don’t know but in the things we don’t know we
don’t know.
VII. JUDICIAL RECRUITMENT
Traditionally, little effort has been made in Canada to recruit judges with a scientific
or technical background. This is true even of the Federal Court where most intellectual
property litigation takes place. In many jurisdictions the ideal of the “generalist judge” is
26
“Discredited pathologist admits he was profoundly ignorant” CBC News (28 January 2008),
online: http://www.cbc.ca/canada/story/2008/01/28/smith-inquiry.html.
27
Goudge Report, Recommendations, at p. 69.
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giving way to a more specialist bench that is able to operate in particular cases with a
much shorter learning curve.
VIII. MODIFICATION OF THE ADVERSARIAL SYSTEM
Our present system contemplates that a case must be resolved on the evidence heard
in the courtroom. Yet the courtroom, with all its formalities and evidentiary rules is a
poor schoolhouse, and “duelling experts” may make bad teachers. Courts are, however,
the masters of their own procedure and have the flexibility to modify to their own
advantage the framework within which experts testify. Why, for example, in a case that
requires a judge to grapple with serious scientific evidence, can the parties not arrange for
an out-of-court seminar on the basic science or expertise involved in a case? This was
done for a panel of judges in the House of Lords in Kirin-Amqen Inc. v. Hoechst Marion
Roussel Ltd [2005] 1 All E.R., a patent case. One can imagine the technique being used
with equal benefit in a case involving hedge funds, financial derivatives or credit swaps.
As to the expert evidence presented by the parties, the rules of procedure might be
modified to require experts to exchange reports and meet face-to-face for an unmediated
discussion before trial. This has been recommended by a recent British Columbia Task
Force on Civil Justice as a mandatory step, as well as ordering opposing experts to
produce a joint report which defines key terms as well as the points of agreement and
disagreement. Whether such a reform, if implemented, is pursued in the spirit it was
intended remains to be seen.
Once the hearing begins, more frequent consideration might be given to a court-
appointed expert nominated by the parties to sit with the judge or jurors to respond to
their questions within the relevant field of expertise. In some cases, it may be appropriate
for the court to take the initiative in appointing its own scientific “amicus curiae” to
provide assistance in evaluating the technical evidence even without the consent of the
parties. This is the tradition in some continental legal systems, and is the practice in
admiralty courts (which have a civil law genesis) including the Federal Court of Canada
sitting in admiralty. There is much resistance at the bar to such a proposal, but it should
be considered at least in this jurisdiction in greater depth. It might serve the objective of
keeping the costs of litigation proportionate to what is at stake, as well as helping to level
the playing field.
Moreover, a court should be able to require opposing experts to testify on the same
panel and be subject to questioning in the presence of each other, with the right to
question each other in the presence of the tier of fact. The procedure whereby opposing
experts testify together on the same panel is regularly used in continental legal systems as
well as by administrative agencies in Canada, such as the National Energy Board, and is
employed with success in the Federal Court of Australia (where it is known as the
“Australian hot pot”). The theory is that experts testifying in the presence of one another
are likely to be more measured and complete in their pronouncements, knowing that
exaggeration or errors will be pounced upon instantly by a learned colleague, as opposed
to being argued about days later, perhaps by unlearned opposing counsel.
IX. CONCLUSION
It is easier to identify the problems than to arrive at solutions acceptable not only to
the bench but to the bar (and its clients) and to the various communities of experts. Yet
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10. INTERNATIONAL ASSOCIATION OF PROCEDURAL LAW, 2009 TORONTO CONFERENCE
the deficiencies of the present approach to expert evidence in the courts are obvious, and
in the result risk the credibility of judicial decisions in such matters. The public is rightly
shocked by the scandal of demonstrated miscarriages of justice based on flawed expert
testimony as disclosed by the Goudge Inquiry into Dr. Charles Smith, and the Kaufman
inquiry into the wrongful conviction of Guy Paul Morin. The Courts ignore public shock
at their peril.
The role of experts has evolved over the years from an idealistic concept of avuncular
friends of the courts to a greater tendency in recent times towards paid gunslingers. If the
initial idea was unrealistic, the second is becoming increasingly unacceptable to all
concerned. There are numerous proposals for reform. The question is whether the natural
lethargy of the legal community will allow the best of them to be implemented.
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