Admissibility of Expert Witnesses within UK Law - Essay Example

Within criminal litigation there is a need to examine the whole law of admissibility of expert witnesses from first principles. Introduction The admissibility of expert witnesses within UK law has recently been called into question because of a number of extraordinary cases in which their evidence has been shown to be false. There are a number of famous cases, such as R. v Dallagher, in which a man was convicted of murder on the basis of an 'ear print' left at a scene, only to be released from seven years later when the efficacy and reliability of that evidence was brought into question. In a world in which advances in forensic science have led to increased specialization and a growth in the expertise needed within those specialties, the expert witness seems to be here to stay. The justice system cannot get rid of expert witnesses altogether, but the system by which someone "becomes an expert", as well as the admissibility of experts to trials and the manner in which their evidence is evaluated can be improved. The battle of dueling experts has become somewhat counterproductive, with the reputations and persuasiveness of the experts involved becoming more important than the objective evidence they can provide. How to Become an Expert It is now possible to join The Society of Expert Witnesses in the UK. The motto of the organization, quisque ad praestantiam nitens is, ironically, translated with a lack of expertise to "each towards excellence striving" - when "each striving towards excellence" is surely the correct wording in modern English. The Society was only founded in 1995, but the Latin motto shows that it is attempting to suggest that it is somehow an established part of the legal system rather than a relative newcomer. Of course brevity of existence is no judgment of quality, but the attempt to create the sense of history that does not exist perhaps is. The definition of an expert witness has gone through a long development. Formal education in a subject is not necessarily needed, as was established as early as R. v. Silverlock (1894), in which a solicitor who had studied handwriting for more than ten years was accepted as an expert even though he had no formal training in the subject. R. V. Robb (1991) established a similar principle and qualified it through saying that the finder of fact (Judge or Jury) should be the one that decides how much weight to give to it. Thus the degree of "expertise" (or otherwise) shown by the expert witness should be decided by the finder of fact. The Society gives a succinct description of both expert and expert witness on its welcome page on the Internet. While these are not formal definitions found within the law, they are at least a starting point for the consideration of contributors to the trial whose role is somewhat uncertain. There is no comprehensive definition of "expert witness", so the Society may well be a help in studying such: An expert is anyone with knowledge or experience of a particular field of discipline beyond what is expected of a layman. An expert witness is an expert who makes his or her knowledge available to a court (or other judicial or quasi-judicial body) to help it understand the issues of a case and reach a sound and just decision. 1 The definition of expert would seem to be extraordinarily broad, and would include large segments of the population within an increasingly specialized society. No mention is made of educational qualifications, let alone the graduate degrees that might be expected for one who calls herself an expert. The Society seems to be attempting to have as broad a definition as possible for "expert", which is logical as its first listed aim is to assist "members in running their expert witness business by any suitable means."2 The fact that being an expert witness can now become a full time source of self-employment may be starkly contrasted to the early days of expert witnesses in the early to mid Twentieth Century, when they were experts within their fields (often scientific or forensic in origin) and would only become an expert witness in a court when periodically called upon. The fact that there are expert witness businesses puts into doubt the Society's claim that expert witnesses seek to help a court "reach a sound and just decision". The expert witness is hired to present evidence, supposedly with the weight and authority of an "expert" that will help the side in the case that has hired him. An objective presentation of evidence is not what an expert witness does; she provides part of the argument for one side or the other within what is still an adversarial legal system. It is the discrepancy between the ideal of objectivity and the reality of subjectivity that has caused so many problems in the last decades. Admissibility of Evidence Basic rules of evidence state that in all types of cases (criminal and civil) the opinions of witnesses are not admissible. A witness is confined to answering questions of fact posed to him by counsel. The court and/or the jury decides upon what those facts mean within the context of a case. Thus an expert witness cannot, normally, state whether she regards a defendant as innocent or guilty - she state facts that imply this opinion, but not explicitly state it. However, the rules have been somewhat stretched for expert witnesses. In civil litigation expert testimony is an exception to the exclusionary rule: Where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.3 Indeed, in all cases, both criminal and civil it seems as thought the system of justice has come to rely on expert witnesses to a remarkable degree. Thus Dame Elizabeth Butler-Sloss, the former president of the Family Division, has stated that "expert witnesses are a crucial resource, without them we (the judges) could not do our job."4 Indeed, judges and juries have been using some form of expert witnesses for many centuries. Thus Buckley v. Thomas-Rice (1554) and Folkes v. Chard (1782), among others, involved the testimony of expert witnesses that involved opinion as well as factual statement. Over the years evidence that is admissible has grown in both scope and complexity. One of the most basic rules regarding expert testimony is also the one that calls into question the whole adversarial system in which an expert is hired by one side or the other. Thus in Whitehouse v. Jordan (1981), the Court stated 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." The Court also found that "an expert witness should state the fact or assumption upon which his opinion is based . . . he should not omit to consider material facts which could detract from his concluded opinion." If expert witnesses, and the evidence they give, both factual and opinion in basis, were genuinely neutral then these precepts would be logical. But only the Judge and Jury (in civil and criminal cases respectively) are the neutral finders of fact. The Lords appear to have asked expert witnesses to take on two, mutually exclusive roles at the same time: to testify on behalf of the side that has retained them but also to give objective evidence, including that which may counter the argument of their clients. Previous Court decisions and opinions were codified within the Civil Procedure Rules in 1998. Within criminal trials, where the stakes for all concerned are so much higher it appears, paradoxically, that the weight given to the testimony of expert witnesses has become even greater than in Civil trials. Perhaps this is because the final finder of truth in criminal trials is a jury of ordinary people rather than the perhaps less-impressible Judge in the civil case. The expert in a criminal case needs to meet the same burdens as in a civil case, but as recent miscarriages of justice have shown, the fact that an individual is an "expert" in his field (i.e. an MD is be definition an expert in medical matters) this does not necessarily imply that his evidence will be based upon that expertise, even though he claims it is. Perhaps the best example of this discrepancy is the case of Sir Roy Meadow, who "is the proponent of the eminently unscientific theory, which became known as Meadow's Law, that one cot death in a family was a tragedy, two was suspicious and three was murder."5 At least one woman, Sally Clark (R. v. Clark (1999)) was convicted on the basis of this "expert evidence" that sought to prove "shaken baby syndrome", even though there is no such syndrome to be found in the established literature. The Ultimate Issue The principle of the ultimate issue states that the Judge decides the degree of culpability in a civil trial and that the jury decides guilt or innocence in a criminal trial. Thus an expert witness is not meant to deliver an opinion on the ultimate issue, even though she may come very near to doing so. The expert witness should not say "A is definitely culpable" in a civil trial or "B is definitely innocent" in a criminal trial. Their evidence and opinions may lead to this conclusion, but they should not state the conclusion themselves. This is the theoretical state of affairs. The actual occurrences in courts around the UK are far more problematic. Dr. Meadows stated in the trial of one defendant that the chances of two babies dying from cot death within an affluent family was 1 in 73,000,000. Another expert witness for the Crown in a similar stated that "I have never seen such injuries" and that they were "equivalent to a high-velocity traffic accident". In reality the chances of two cot deaths are 1 in 77, and emotive, metaphoric and deliberately prejudicial evidence is not meant to play a part in a criminal trial. But the expert witness was regarded as somewhat beyond reproach, omniscient and thus essentially the finder of the "ultimate issue". All the Jury needed to do in these cases was to find an 'obviously guilty defendant guilty', which they duly did. The witness has moved from stating facts, to giving opinions and on to deciding the guilt or innocence of the defendant. Expert Witnesses and Weight The fact that the expert witness appears to be so overwhelmingly persuasive means that, despite what are often sincere and valiant efforts to inform the Jury otherwise, they take the evidence as fact, especially when it is not contradicted by other evidence or testimony. Indeed, the testimony and opinions of the expert witness often seen to become a form of evidence that it is impossible to refute. While testimony such as that given by the infamous Dr. Meadows is obviously based upon fallacious statistical calculations (in his case merely multiply the chances of one infant cot death by the chances of another single occurrence), the evidence of psychological expert witnesses is far more difficult to judge. Cases of dueling psychologists are problematic for two basic reasons. First, they appear to make a mockery of the whole legal system, as the legal and medical communities appear to speak a different language, and second, they are often irrelevant to an actual finding of fact. Interestingly, the "ultimate issue" is often not disputed in some of the most infamous cases involving psychologists and psychiatrists, but rather the "degree of responsibility" (or lack of it) is what is being considered. How much weight should be given to one expert over another Two cases, that of Dennis Nilsen (R. v. Nielsen, 1983) and that of Peter Sutcliffe, the 'Yorkshire Ripper' (R. v. Sutcliffe, 1981) illustrate the often ludicrous situations that dueling expert witnesses present the Court and Jury with. In R. v. Nielsen the defendant had admitted to killing more than ten men over a four year period, and had helped the police to try to identify the often anonymous young men that he had killed. So the "ultimate issue" was not at stake as Nilsen freely admitted to the crimes. As the defendant himself wrote, "I have judged myself more harshly than any court ever could . . . we are not dealing with murder here, although I have killed."6 No-one denied that Nielsen had killed, it was what his state of mind was at the time of those killings that was in dispute. The Crown claimed that he had done so with full awareness and deliberation, and should therefore be convicted of murder. The Defense claimed that he suffered from such an abnormal mind that he was of reduced responsibility, and so should be found guilty of manslaughter. The argument was not over the actus reus but rather the mens rea. Perhaps the most important point raised by this trial was that the actual result of the trial was completely certain: Dennis Nielsen would spend the rest of his life incarcerated. The argument was over whether he would be imprisoned in a prison or located in a secure mental hospital. The psychiatrists involved in the case, while well-intentioned, made a mockery of the proceedings by arguing over matters such as whether watching TV with a corpse sitting on a settee besides you and talking to it as if it were a live human being shows evidence of 'reduced responsibility'. There was also a series disagreement over the implications of killing someone on Sunday night, going to work on Monday wearing his tie and then arriving home in the evening to be surprised by the presence of a corpse in your cupboard. As Anthony Storr suggests in his Postscript to Brian Masters' excellent book about the case, "one thing which clearly emerges from the Nilsen trial is that both psychiatric classification of mental disorder and legal concepts relating to it are totally inadequate." This inadequacy stems in part from the essential ambiguity and inexactitude in studies of the human mind, which are only just in their embryonic stage of understanding, together with the hopelessly outdated McNaughton rule. This rule, stemming from R. v. McNaughton (1843) states that for a defendant to be found insane he must have no concept of what is right and what is wrong at the time he committed the crime. Expert witnesses required to use this rule are forced to argue a concept that is of little validity within modern psychiatry. To use Nilsen as an example, he clearly was capable of knowing right from wrong at the time of the crimes: he was an eloquent, articulate individual of very high intelligence who had written thousands of pages about the very problem of a man such as himself, with a highly developed sense of morality, murdering men for no reason. Did the fact that he had this moral sense make him any less "insane" by any layman's definition of the word Should the layman's definition of insanity be used in cases such as this or should dueling psychiatrists continue with their Alice in Wonderland-like conversations in which they argue about the sanity of actions that the average eight year old could instantly identify as abnormal. A graphic example from America, where states largely follow the McNaughton Rule is the Jerffrey Dhamer case (Wisconsin v. Dahmer, 1991), in which psychiatrists argued whether making a stew of one's victims is insane or not. As far as expert testimony from psychiatrists and other psychological professionals is concerned, Storr has a powerful solution: A very brief trial would have established whether or not he had committed the crimes of which he was accused, since he himself had furnished detailed accounts of them . . . then it would be up to the Court to decide what best to do with such a man, and, at this point, the Court might well feel that psychiatric advice would be helpful . . . both lawyers and psychiatrists need to find a common language in order to understand each other and become able to rationally communicate.7 Storr's proposed new system would of course represent a radical departure from the current adversarial system in which expert witnesses are seen to fight one another in an attempt to have their evidence "weigh" more with the Judge or with the Jury. However, there are precedents within the current judicial system. For example, social workers are used as objective arbiters of various situations in both Civil and Criminal trials. Such an objective arbiter would have been useful in the case of R. v. Sutcliffe (1981). The following exchange occurred between the Prosecution and a defense expert witness, Dr. Milne. Milne had suggested that Peter Sutcliffe was not a sexual killer, despite the fact that he killed prostitutes and often mutilated their sexual organs: Dr. Milne: In simple terms, although his victims were female and it might be thought to provide the suggestion that he must be a sexual killer, I am of the opinion that he is not primarily a sexual killer. Mr. Ognall: (Holding up sharpened screwdriver) There is absolutely no doubt that this wicked agent was introduced deep into the vagina with almost no injury to the external parts. That indicates the most fiendish cruelty deliberately done for sexual satisfaction. Do you agree Dr. Milne: It may be a most vicious and foul thing to do, but not necessarily for sexual satisfaction. Mutilation of the genitalia for sadistic satisfaction would have to be repetitive, and there is no evidence, as far as I know, that this man has attacked any of his victims in this way. There is an air of unreality to this exchange, as if the two eminent men are trying to communicate but are unable to do so because they are speaking different languages. The exchange occurred because Dr. Milne was stating that he believed Sutcliffe's assertion that 'God' had told him to "clean up the streets", whereas the prosecution was trying to prove that he gained sexual satisfaction from the killing. An apparent obsession with obtaining the unobtainable: an accurate representation of a serial killer's mens rea at the time of the killing, leads to such exchanges which do little to reinforce the public's confidence in either the legal or medical community, nor do they ensure that justice is done. As in the case of Dennis Nilsen, the trial of Peter Sutcliffe would have been much more productive if it had concentrated upon where he should spend the rest of his life incarcerated rather than an academic discussion of whether God or his sexual impulses/inadequacies told him to kill women. Neither side's expert witnesses admitted that the two explanations of Sutcliffe's motivation were in fact being arbitrarily made dichotomous. In fact he may have heard 'God' tell him to kill the women, and also have gained sexual gratification from the killing/mutilation. God might have told him to kill and also to enjoy the killing for all the experts know. The two theories of motivation are not mutually exclusive, despite the need of dueling expert witnesses to suggest so. Criminal Justice Act 2003 The Criminal Justice Act of 2003 was, so the government claimed, an attempt to modernize an antiquated and inefficient justices system in the UK. In some ways it might be regarded as regressive rather than progressive. The Act enables trials without a jury, the admissibility of so-called bad character evidence and also a relaxation on the law against double jeopardy. Now an accused criminal can be charged with a crime for which they have been previously acquitted if there is "new and compelling evidence."8 The parts of the Act that relate to expert testimony are favorable towards defendants however. There is now a "more inquisitorial, cards on the table, approach to criminal procedures."9 There is now a level of disclosure that approached the American system of discovery. Of particular importance are the new prosecution and defense requirements of disclosure, that include a pre-trial exchange of names of experts and the facts/opinions that they will give, including the bases for those claims. Further, the prosecutor "must keep under review the question whether at any given time (and, in particular, following the giving of a defense statement) there is prosecution material which - a) might reasonably be considered capable of undermining the case for the prosecution against the accused or assisting the case of the accused, and b) has not been disclosed to the accused." (Criminal Justice Act, 2003. Chapter 44, Part 5 37 7A) This includes evidence given by expert witnesses and will perhaps help in the process of moving away from a purely adversarial position for these witnesses into one in which they are present to help the Court reach a just verdict. A Critique of Expert Evidence A critique of expert evidence has already made up the bulk of this discussion, but concentration on a few cases, most notably the recent miscarriages of justice involving accused child-abuse and infant murder will enable some conclusions to be drawn. In early 2005 the Attorney-General ordered all cases of manslaughter or murder convictions for children under two to be investigated. As of March 2004, there were 288 such cases, with 86 prisoners still in custody.10 As Wilson suggests, "the potential repercussion of these cases, in terms of number of successful appeals, may be substantial . . . the extent of human suffering is incalculable." Indeed. Standing back for a moment from the details of cases such as R. v. Clark and R. v. Cummings, it must be noted that modern day societies like to portray themselves (and their citizens often accept the notion) that they are somehow beyond the kind of mob mentality that produced such famous miscarriages of justice as the Salem witch trials. But reading a transcript of some of the more infamous "expert" witness trials from the last few years produces powerful reminders of Arthur Miller's The Crucible. It is now science rather than religion which is treated in awe, as if it were some kind of infallible god that cannot be challenged. The clergyman of the religion of science are the scientists who claim to have knowledge of it, and they come in the form of expert witnesses with many degrees, an impressive CV and an apparently water-tight interpretation of the facts of the case. As Wilson suggests, it is unusual for an expert witness to deliberately falsify their evidence for malicious purposes. Mistakes occur for a myriad of reasons but these tend to fall into one of three main categories. First, the scientific methodology may not follow the rigors of the scientific method. Second, they may be ignorant of, or at least not full comprehending of forensic science and its inherent inexactitude at times. Third, their opinions may be inconsistent with the scientific evidence they have actually given. Examples of mistakes in method abound in the legal literature. R. v. Clark is a classic example. The intra-retinal hemorrhaging that was used to suggest violent shaking was in fact of post-mortem origin. Professor Luthbert, after investigating the reports, attributes that the 'hemorrhages' were in fact drops of blood that had dripped onto the slide during preparation.11 Wilson succinctly states the problem with such a basic error, "if the initial test, or foundation, is weak then any subsequent scientific structure is susceptible to collapse."12 The problem of the difference between the science that the expert practices and forensic science was also revealed in Clark as a series of tests were undertaken in the laboratory of which the expert was aware, but which he thought (erroneously) would be irrelevant to the trial. The need to consider all tests, however apparently 'irrelevant', is an essential part of forensic science as it joins with the legal system. The fact that a scientist would not have the common sense to realize that full disclosure was needed in a murder trial perhaps says something about the nature of specialized education in the UK, but if such sense cannot be assumed then it training in it must be compulsory. The third type of problem involves some of the most disturbing expert witness mistakes in recent trials. In Clark, Dr. Williams had previously concluded that a child died from a lower respiratory infection, but then appeared to "change his mind" in the trial, ruling out infection as a possible cause of death. The Court of Appeal, when considering the trial as part of the Attorney-General's overall review, came near to accusing the doctor of deliberately fabricating his evidence in order to secure a conviction. As the Court stated: ". . . he advanced no convincing explanation for the alteration of his position . . . he was unable to explain whey he had previously asserted that there was evidence of respiratory infection but now concluded that there were no significant features of such an infection. Put at its very lowest, this aspect of the matter called into question the competence of Dr. Williams. (R. v. Clark, 2003) The problem here is two-fold. First, that the doctor would apparently deliberately change his medical opinion based upon the desire to convict the defendant calls into question the whole premise of the expert witness system. Part of that premise is the fact that the expertise of the person testifying essentially makes their opinions more trustworthy than that of an ordinary witness. A perhaps archaic link between education and ethical standards is being made here; one that Dr. Williams and his ilk bring into question. Second, the fact that the Jury was apparently so blinded by the perhaps natural tendency to accept a doctor's wisdom (for if they are not wise the consequences may be unthinkable) that they still accepted Dr Williams's testimony despite its obviously contradictory and thus suspect nature. A related problem to this supposed scientific infallibility is that an "expert" in one discipline is used as an "expert" for others for which he has no claim to such a title. Thus the infamous Professor Meadow has "over time. . . been requested to testify on matters of pathology, statistics and psychology."13 Here the share of blame must be apportioned fairly. For while Meadow would, in an ideal world, have admitted that he was not qualified to be an expert witness on these matters, it was perhaps asking too much of a highly educated man's pride to do so. It was the lawyers, and most of all perhaps the Judge, who were to blame for the unfortunate expansion in Meadow's supposed realm of expertise. Judges and lawyers are meant to know the law and the limitations of expert testimony, but they too seem to have been blinded by the apparent wisdom of science. Thus a "scientist" is seen as an expert on any aspect of "science", however remote from his actual area of expertise. Such a situation makes it much more likely that inaccurate scientific pronouncements and opinions are likely to be made in Court. In Clark it was the use of statistics in an improper manner which perhaps led most to the miscarriage of justice. Meadow calculated the staggering improbability of two children dying from infant cot death in the same family without considering the genetic factor that could lead to several such deaths of babies with the same babies. Whether he deliberately failed to take this into consideration or whether it was accidental, it does seem remarkable that none of the QCs involved with the case saw that the figure of 1 in 70,000,000 was an absurd 'statistic' that must have been based upon error. More transparency in the selection and evaluation of barristers applying for silk have been implemented over the last few years, but even with these more stringent standards knowledge in all sections of expert testimony cannot be expected. Again, common sense should have been applied, and once again, it was mysteriously absent. Scientific testimony, while increasingly based upon highly sensitive and powerful forensic techniques, also seems to be degenerating into emotion and suggestion. The scientific 'theory' on which the motivation for the crime of killing one's children was based, the so called Munchausen's Syndrome by Proxy (MSBP), is largely an invention of a few doctors testifying for the prosecution in a series of child murder cases. Lord Howe has described this situation thus: MSBP is one of the most pernicious and ill-founded theories to have gained currency in childcare . . . over the past 10 to 15 years . . . it is a theory without science . . . there is no peer-reviewed research to underpin MSBP . . . it rests instead on assertions of its inventor and a handful of case histories . . . when challenged to produce his research papers to justify his original findings, the inventor of MSBP stated, if you please, he had destroyed them.14 CONCLUSION Expert witnesses are a necessity within the present world because of the rapid advances that have recently occurred in forensic science: from psychiatry to DNA testing. However, with this increased utilization of expert witnesses comes the need for greater regulation how who is regarded as a witness, what they can testify to and how that testimony should be used by the Court. The recent miscarriages of justice have, unfortunately, brought the whole criminal justice system in general, and forensic science in particular, into question. The vast majority of expert witnesses are neither malicious nor incompetent, nor, as seems to have been the case in some infamous cases, both. Their role needs to be more carefully defined, and perhaps removed from the adversarial portion of a trial to a more objective proceeding in which the truth, rather than legal gain by one side or the other, can be their primary purpose. ____________________________________________________ Works Cited Buckley v. Thomas-Rice. (1554) Butler-Ross, Elizabeth. Quoted in Expert Witness Institute. Civil Evidence Act, 1972. Civil Procedure Rules, 1998. Criminal Justice Act, 2003. Dougan, Paul. "How are the courts to make sense of modern science". The Times, June 28th, 2005. Folkes v. Chard. (1782) Hansard, HL, February 5th 2003, col. 316. Masters, Brian. Killing for Company Jonathan Cape, 1985. Miller, Arthur. The Crucible. Penguin, London: 1969. R. v. Clark (1999) R. v. Dallagher R. v. Nielsen (1983) R. v. Robb (1991) R. v. Silverlock (1894) R. v. Sutcliffe (1981) The Society of Expert Witnesses,Webpage. http://www.sew.org/uk/noidxba/ Wilson, Adam. "Expert Testimony in the Dock". Journal of Criminal Law. August 2005. 69.4 (330Z) Whitehouse v. Jordan, 1981 Wisconsin v. Dahmer, 1991. Read More