flare CF-RAY: 3de2986c09da8f63-DME Role of Expert Witnesses

Role of Expert Witnesses

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Traditionally, the role of expert witnesses was to supplement the court's common knowledge with any helpful information. More recently, however, experts have taken on a more central and amplified role as investigators with private knowledge."

In 1996, Lord Woolf[1] echoed the disquiet of the time felt at the role of experts in civil litigation:

"A large litigation support industry, generating a multi-million pound fee income, has grown up among professions such as accountants, architects and others, and new professions have developed, such as accident reconstruction experts. This goes against all principles of proportionality and access to justice. In my view, its most damaging effect is that it has created an ethos of what is acceptable, which has in turn filtered down to smaller cases."

Lord Woolf was referring to a culture that had developed in civil cases in which it was regarded as normal, indeed usually essential, in cases of any complexity for both parties to arm themselves with an expert witness or witnesses. This had two undesirable consequences. First, the complexity and therefore inevitably the duration of litigation was increased by the use of such evidence on both sides. More particularly, as will be seen below, experts had become conscious of the fact that they were being paid by a particular party for a particular purpose and felt either consciously or otherwise to provide "value for money" in return for the increasingly inflated fees which they were able to command.. Accordingly, this undermined the integrity and the independence of witnesses who had come to be accorded a special status to the extent that the justification for such status and privileged treatment had disappeared. It is therefore necessary first to examine the reasons for expert evidence being treated differently from other types of evidence, in particular that of the partisan lay party.

The emphasis in a court of law has always been upon the proof of fact. Mere expressions of opinion are regarded as having, at best, little probative value and, at worst, as being objectionable as without weight and potentially misleading. However, there have always been exceptions to such a general exclusionary rule. Uglow[2] opines:

"…an opinion can acquire weight: firstly by a witness testifying to the facts upon which he or she bases that opinion; secondly from the very status of the witness."

It is submitted that this proposition is potentially misleading in two respects: first, while the admission of bare facts is regarded as the desirable norm, an opinion will not necessarily be rendered more valid by virtue of those facts being within the personal knowledge of the witness than if it is an opinion based on facts gleaned from elsewhere; second, as will be seen from an examination of the notorious Meadows case discussed below, the elevated status of a witness can be positively misleading in the sense that juries may be tempted to regard certain proposed conclusions as more likely to be true as a result of the eminence of the witness from whom they issue. This notwithstanding, the common law has always been prepared to admit expert evidence. In the ancient case of Folkes v Chadd[3], Lord Mansfield accepted the opinion evidence of a scientist as to causation:

"I cannot believe that where the question is, whether a defect arises from a natural or an artificial cause, the opinions of men of science are not to be received. Handwriting is proved every day by opinion; and for false evidence on such questions a man can be indicted for perjury…"

In a codified system such as that which operates in the USA, the admissibility of expert opinion is expressly provided for[4]:

"If scientific, technical, or other specialised 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 in the form of an opinion or otherwise [emphasis supplied]".

The evidence of an expert is therefore founded upon his training and experience. It is permissible for an appropriately qualified expert to express an opinion based upon that which is, for him, necessarily hearsay. Thus, for example, a doctor would be able to give evidence of a diagnosis on the basis of symptoms described to him by a patient even though he would be incapable of attesting to the veracity of those symptoms which, if in dispute, would have to be proved by the introduction of other direct evidence. To this extent, the assertion that the traditional role of the expert witness was to "supplement the court's common knowledge with any helpful information" can be justified: it is to be supposed that the purpose in calling such an expert is to allow the court access to information which would not otherwise be available but which can assist the court as a result of the bringing to bear of the expert's particular knowledge in interpreting and assisting in understanding the implications of certain established facts. By contrast, the suggestion that such experts have now evolved into "investigators with private knowledge" is more controversial and, it is submitted, not a helpful definition of the role fulfilled by experts within the context of the present criminal and civil law.

In the civil arena, there has undoubtedly been a shift in the role discharged by experts although not in line suggested by the contrasting quotations above. R.35.3 of the Civil Procedure Rules now provides:

"(1) It is the duty of an expert to help the court on the matters within his expertise.

(2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid."

The Practice Direction which accompanies CPR 35 provides further guidance. The duty to assist the court is paramount. Further:

"1.2 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.

1.3 An expert should assist the court by providing objective, unbiased opinion on matters within his expertise, and should not assume the role of an advocate.

1.4 An expert should consider all material facts, including those which might detract from his opinion."

The provisions which follow (1.5 & 1.6) make it clear that an expert should declare when an issue falls outside his area of expertise or where, for some reason, he is unable to reach a definite conclusion on a particular question and that if, for some reason, he changes his view after production of his report, that change should be communicated to the parties without delay and, where appropriate, to the court. Probably the most radical shift in the practice of experts occasioned by the introduction of the CPR is contained in the judgment of Toulmin J in Anglo Group plc v Winther Brown & Co Ltd[5]:

"[The expert] should co-operate with the expert of the other party or parties in attempting to narrow the technical issues in dispute at the earliest possible stage of the procedure and to eliminate or place in context any peripheral issues. He should co-operate with the other expert(s) in attending without prejudice meetings as necessary and in seeking to find areas of agreement and to define precisely areas of disagreement to be set out in the joint statement of experts ordered by the court."

Thus, the previous adversarial role of experts is swept aside and there is an overriding emphasis placed upon the duty of the experts to assist the court in most efficiently determining the issues in dispute. In this spirit, two professional bodies to one or other of which experts often belong have produced Codes of Practice: the Academy of Experts[6] and the Expert Witness Association[7]. These embody many of the principles described above but underline the newly non-partisan role of the expert by providing that it is improper for the expert to contract to give evidence on the basis of a conditional or contingency fee.

Perhaps the most significant shift of all lies in the fact that it is no longer possible for parties to retain experts and introduce their testimony at will. This process is now court-driven. CPR 35.4 provides that no party can rely upon any expert evidence without the permission of the court and an application for such permission must make clear the field of expertise that the expert purports to possess and wherever practicable identify him. By CPR 35.1, the court is now under a duty to restrict expert evidence to "that which is reasonably required to resolve the proceedings" and, to that end, (by CPR 32.1) may give directions as to the issues upon which it requires such evidence, the nature of that evidence and the way in which it is to be presented to the court. In addition to controlling the introduction of expert evidence in this way, the court now has the power (if not indeed the obligation in the light of the overriding principle of the CPR) to order the instruction of a Single Joint Expert ("SJE"): CPR 35.7 provides:

"(1) Where two or more parties wish to submit expert evidence on an issue the court may direct that the evidence be given by one expert only."

In default of agreement between the parties, the court has the power (CPR 35.7(2)) to select an expert from a list submitted by the parties or by such other means as it may direct. This approach is in fact adopted by, for example, the Pre-Action Protocols in respect of Clinical Disputes and Personal Injury Claims.

It will be observed that the foregoing provisions are to be welcomed from the point of view of saving unnecessary dispute and costs and emphasising the need for agreement as opposed to the artificial adoption of entrenched and diametrically opposed positions. It is submitted, however, that there is an inherent danger in such apparently desirable streamlining: in claims involving high values or where the technical detail which falls within the purview of the expert is complex or facts are capable of more than one interpretation, the testing of evidence "to destruction" by a conflict between experts may in fact be regarded as desirable. It will not be possible in every case for experts to agree and even comparably qualified experts may legitimately in certain circumstances arrive at different conclusions based upon the same set of facts. Indeed, there is evidence of some longstanding judicial disquiet as to this tendency. In Whitehouse v Jordan[8], Lord Wilberforce stated:

"While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely not only to be incorrect, but also self-defeating."

Given the trend towards seeking unanimity wherever possible, it is arguably more important than ever that the professional accountability of experts be scrutinised.

The classic case on the immunity of experts is Stanton v Callaghan[9] which was a Court of Appeal decision relating to a surveyor. The surveyor had initially reported that a building required total underpinning but changed his view after the experts met and the claimant upon advice settled for a far lower sum and then proceeded to sue his expert in professional negligence. The court held that the immunity of an expert in such circumstances was in the public interest on the basis that experts should be free to give their opinion without fear of being sued upon the basis of their evidence. Such protection will apply to evidence given at trial or advice which can be said to be "so intimately connected with the conduct of the case that it can fairly be said to be a preliminary decision affecting the way the case is to be conducted when it comes to a hearing"[10] This approach has been recently preserved by Collins J in Meadow v General Medical Council[11] in which Professor Sir Roy Meadow appealed against the finding of the Fitness to Practice Panel of the General Medical Council that he had been guilty of serious professional misconduct following his diagnosis of child abuse in a series of highly publicised cases. His Lordship was reportedly responding to evidence that there was a progressive loss of experts willing to come forward to assist the court and stated:

"…there was now very real concern that a line has to be drawn which means that the expert witness can feel not at risk of proceedings, disciplinary or otherwise, providing that he or she has acted honestly and reasonably."

The approach of Collins J in upholding the immunity of an expert witness in such circumstances was widely castigated at the time on the basis that it would, in the words of a statement issued by the GMC[12] "place doctors and other professionals, beyond the reach of their regulator, when writing reports for the court or when giving evidence". It is submitted that this is an understandable reaction by a professional body to what it regarded as the usurping by the court of its disciplinary functions but is entirely justified against the background discussed above of the need of the court to have available to it the testimony of experts who feel able to express opinions on difficult and controversial issues without fear of professional sanctions should they commit an error of judgment. In McTear v Imperial Tobacco[13], Lord Nimmo Smith had made it clear that judges were well versed in recognising and dealing appropriately with material introduced by an expert which was in fact outside that expert's field of competence. It is submitted that this was and remains the appropriate safeguard against witnesses straying beyond their remit and the fact that a subsequent disciplinary panel found Professor Meadow's behaviour to have been "irrational" (which perhaps it might have been in the context of clinical diagnosis) should not prevent an expert in such a situation from voicing an opinion designed to assist the court in determining a particular issue in the context of forensic proceedings. The Editor of the UK register of Expert Witnesses, Dr Chris Pamplin suggests[14]:

"There is an important principle that underpins the witness immunity rule but which is often overlooked. Witness immunity exists to protect the public, not the witness…it is fundamental to the proper determination of whether any shortcoming in a witness is serious enough to warrant action against that witness. That is why it is proper for the court to make that judgment."

The point is well made that the complainant against a witness of whose evidence he does not approve may be just as likely to approve of expert evidence which accords with his particular viewpoint. For that reason, the control of the witness should remain the province of the court rather than to allow an attack upon expert evidence by bodies such as professional disciplinary panels.

That case does, however, underline the need for (perhaps only subtly) different tests to be applied to experts in different types of proceedings. In Different court, different rules[15], Penny Cooper argues that a highly co-operative approach between experts is appropriate in family proceedings. As HHJ Wilson opined in Oxfordshire County Council v M[16], "The game of adversarial litigation has no point when one is trying to deal with fragile and vulnerable people like small children. Every other consideration must come second to the need to reach the right conclusion if possible." However, Cooper argues that this laudable principle should not be carried too far:

"…experts should be under no illusion; non-adversarial does not mean "friendly" or "easy going". Expert evidence will be stringently tested; what is at stake demands nothing less."

As might be anticipated, the use of expert evidence in criminal proceedings remains more adversarial in nature. However, certain principles remain the same not the least of which is that it is inappropriate for either Prosecution of Defence to be "ambushed" by such evidence. An anomaly exists in respect of the Magistrates' Court in that proceedings are still therein governed by common law and it remains theoretically possible for either party to adduce expert evidence without having first disclosed a report. In practice, this does not open the way for such evidence to be introduced by surprise. By their very nature, trials before Justices are likely to be less complex than those on indictment and therefore the issue of the introduction of such evidence is inherently less likely to arise. In any event, were either party to seek to gain advantage by such a tactic, an application for an adjournment to allow either party to consider their response to such testimony would almost invariably succeed. The situation in the Crown Court is regulated by the Police and Criminal Evidence Act 1984 and the Criminal Justice Act 1988. Section 81 of the 1984 Act and Pt.24 of the Criminal Procedure Rules 2005 provide for the disclosure of the reports of experts who are to be called to give evidence. Rule 3(1) provides that as soon as practicable after committal, a party wishing to adduce expert evidence must serve upon the other a written statement of that evidence and a copy of the "record of any observation, test, calculation or other procedure upon which such finding or observation is based". Furthermore, s.30 of the 1988 Act provides that hearsay evidence of expert opinion is admissible whether or not the expert is called to give oral evidence. However, it is desired to introduce such a report without calling its author, the leave of the court is required. In considering whether or not to grant such leave, the court is required by s.30(3) to have regard to the following:

  • The contents of the report;
  • The reasons why it is proposed that the person making the report should not give oral evidence;
  • Any risk, having regard in particular to whether it is likely to be possible to controvert statements made in the report if the maker does not attend' and
  • Any other circumstances considered by the court to be relevant.

This development might be regarded as consistent with the parallel spirit of the CPR in that the laborious proof of expert opinion and its verification by oral testimony is to be regarded as undesirable where this can be avoided without injustice but the ability of the court to reject unsupported evidence in this form retains an important safeguard: if the evidence is largely uncontroversial, there is obviously little to be gained by insisting upon further proof; if, however, it is thought that a party might be prejudiced by an inability to test the evidence through cross-examination, the procedure is regarded as inappropriate. A particular facet of Crown Court trials by contrast with civil proceedings is the presence of a jury. For this reason, the potential impact of such evidence upon a lay jury has to be carefully considered. In Davie v Edinburgh Magistrates[17], Lord President Cooper held that the duty of experts "is to furnish the judge or the jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent conclusions by the application of those criteria to the facts proved in evidence". The direction to the jury is therefore of paramount importance. For example, it was held in R v Lanfear[18], where a doctor in a criminal case is regarded as giving independent evidence for the assistance of the court, it is incorrect nonetheless to instruct the jury that such evidence must be accepted unless they are able to locate good reason for rejecting it. Conversely, in Andersen v R[19], it was held to be incorrect to instruct a jury to disregard scientific evidence where such evidence dictates a particular answer to a question and only a scientific expert is qualified to adduce it. This principle was applied in R v Bailey[20] in which, on a charge of murder, evidence was called to establish diminished responsibility. This was not rebutted by the Prosecution but the jury proceeded in any event to convict of murder. It was held that while a jury were not bound automatically to accept the evidence of an expert, where such evidence was available, they were not entitled to substitute their own intuition. Nothing had been adduced to cast doubt upon the evidence and therefore it was not open to the jury to reject it.

The role of the expert in criminal trials was recently revisited by the Court of Appeal in R. v Bowman[21] in which he appellant appealed against his conviction for the murder of his wife. An autopsy conducted following her death had given the cause of death as alcohol and valium poisoning. Twenty two years later her daughter alleged that the husband had been responsible for the death. A second autopsy concluded that she had been killed by manual strangulation, and the husband was charged with her murder. carried out the second autopsy that the first pathologist had missed expected signs of strangulation through incompetence. In particular that he had missed bilateral fractures of the larynx cartilage. The accused adduced pathology evidence to support the results of the first autopsy. The major issue at trial had been whether the fractures had occurred before or after death. It was argued on appeal that the evidence from the second pathologist could not be justified on the facts in the light of expert evidence from pathologists that had been available to the defence at trial but had not been called, that she had expressed her reasons with a certainty that could not be justified, and that she had failed to give alternative possible causes of death. It was held, dismissing the appeal, inter alia that the criticisms of the second pathologist's evidence were unfounded. The court took the opportunity to give guidance on the specific factors to be included in an expert report:

  • Details of the expert's academic record and professional qualifications, range of experience and any limitations on expertise;
  • The substance of the instructions received, questions upon which an opinion was sought, the materials provided and considered and the information or assumptions that were material to the opinions expressed;
  • Information about who carried out measurements and tests, the methodology, and whether they were supervised by the expert
  • Where there was a range of opinion in the matters dealt with in the report, a summary of the range of opinion and the reasons for the opinion given. In that connection any material facts or matters that detracted from the expert's opinion and any points that should fairly be made against any opinions expressed should be set out;
  • Relevant extracts of literature or other material that might assist the court;
  • A statement that the expert had complied with his duty to the court to provide independent assistance by way of objective unbiased opinion, and an acknowledgement that the expert would inform all parties and where appropriate the court if his opinion changed on any material issue; and finally that,
  • the same guidelines should be followed in any supplemental report.

Consideration of the above "checklist" reveals a striking similarity with the principles that now underlie the regulation of expert evidence in the civil courts by virtue of the introduction of the CPR. While there is not the same emphasis upon the need to dispense with expert testimony unless this is considered necessary by the court and there is certainly no reference to the desirability of experts agreeing or, at the very least, narrowing the issues between the parties (and certainly no question of attempting to instruct a joint expert), there may be detected a stress upon the need to scrutinise such evidence and to test its veracity in its own right rather than by setting it against the evidence of a comparable witness and allowing the jury to sit like spectators at a tennis match through a forensic battle of wits, qualifications and forensic credibility between two or more experts in the same field.

Therefore, to this possibly limited extent, it might be conceded that the suggestion of experts being placed into a "central and amplified role as investigators" could be justified. The majority of the factors listed above do not serve to place the expert in a position of hallowed infallibility. Rather, they are designed to ensure that, where the opinion evidence of such a witness is introduced, the particular tribunal is better equipped to judge the validity and appropriate weight to be attached to that evidence. This is not to say that the first proposition that the role of experts was to "supplement the court's common knowledge with helpful information" is invalidated. In conclusion, therefore, it is submitted that while the role of the expert witness has indeed changed radically, this is not necessarily in the manner suggested by the quotation. There are elements of both aspects of the description which remain valid. It is suggested that the transformation that has taken place in recent years, particularly in respect of civil proceedings, is rather designed to reduce the adversarial nature of the introduction of such evidence and to streamline the conduct and therefore inevitably the cost of litigation by seeking areas of agreement and the more efficient identification of the genuine disputes which must fall to be adjudicated upon by the court. Despite an attempt to align the expert in criminal proceedings with his civil counterpart, there must remain certain important distinctions. Civil trials are always susceptible to compromise. To this end, it is in the interests of both parties to retain experts who will work toward a meeting of minds rather than polarise the differences between Claimant and Defendant. The nature of the criminal trial is, of necessity, far more absolute. There is a seeking after the truth that can be established "beyond reasonable doubt" rather than a weighing of competing claims "on a balance of probability". This notwithstanding, the guidance issued in Bowman stresses the role of the expert as an assistant to the court in arriving at such "truth" rather than as a partisan retained to subvert his professional judgment and integrity to the perceived interests of his client. In both legal arenas, the reform of the role of the expert is to be welcomed and will in the long term serve to enhance rather than diminish their standing and distance such witnesses from the somewhat tawdry reputation which is apparent from the words of Lord Woolf at the outset hereof.

Bibliography

Cooper, P., Different court, different rules, (2006) NLJ 310

Cooper, P. & Burn S., Expert Evidence, CPD Direct, (2005)

Expert Witness Update, SJ, Winter 2006

Lord Woolf, Access to Justice Report (HMSO, 1996)

Magner, T., To err is human?, (2006) NLJ 301

Malek, H. (Ed.), Phipson on Evidence, (16th Ed., 2005)

Murphy, P., Murphy on Evidence, (9th Ed., 2005)

Pamplin, C., Experts and a smoking statistic, (2006) NLJ 314

Pamplin, C., Sanity Restored?, (2006) NLJ 385

Taylor, C., Inaccurate Dissection, (2006) NLJ 313

Uglow, S., Evidence, Text & Materials, (1997)

Westlaw

www.academyofexperts.org.uk

www.gmcpressofffice.org.uk

www.expertwitnessinstitute.org.uk


Footnotes

[1] Access to Justice, (1996)

[2] Evidence, Text & Materials, (1997), p.615

[3] (1782) 3 Doug KB 157, at 158

[4] Federal Rules of Evidence, r.702

[5] (2000) 72 Conv LR 118

[6] www.academyofexperts.org.uk

[7] www.expertwitnessinstitute.org.uk

[8] [1981] 1 All ER 267

[9] [2000] 1 QB 75

[10] Palmer v Durnford [1992] QB 483

[11] [2006] EWHC 146

[12] www.gmcpressoffice.org.uk/apps/news/latest/detail.php?key=225

[13] (2005)The Times, 14 June

[14] (2006) NLJ 385

[15] Cooper, P., Different court, different rules, (2006) NLJ 310

[16] [1994] Fam 151

[17] (1953) SC 34 at 40

[18] [1968] 1 All ER 683

[19] [1972] AC 100

[20] (1977) 66 Cr App R 31n

[21] [2006] EWCA Crim 417


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