Judicial Role in Expert Witnesses - Essay Example

Insert Judicial Role in Expert Witnesses Expert evidence has been part and parcel of trial processes for many centuries now. Regardless, concerns have been raised about of the impartiality and fairness of expert witnesses providing scientific evidence at trial, perhaps since the concept became part of court processes. In today’s adversarial trial system, protecting the trial from partial expert witnesses has, for over a century, been an imperative concern for various stakeholders seeking and administering justice. Since expert evidence became an important body of evidence in the second half of the 19th century, the function and behavior of the experts have turned out to be even more controversial. The inclusion of expert evidence in civil and trial has increased remarkably to encompass, for example, modern and innovative scientific procedures and related assessment reports. This paper critically examines how courts have influenced expert evidence at trial. The Civil Procedure Rules Common law traditions require that expert witnesses are only sought with the permission of the court and that the principal obligation of the experts is to remain impartial to the court during the course of their submissions. The obligations and conduct of expert witnesses are well stated in both the Practice Direction 35 and the Civil Procedure Rules (CPR) Part 35, with CPR Part 35.3 specifically indicating that: experts are duty-bound to assist the judicial process on the issues within the scope of their respective professions. The obligation surpasses any duty to the party from whom such a professional has received briefing or who is responsible for their earnings (Gans 353). In addition, Practice Direction 35.2 also indicates that expert evidence should be the impartial outcome of the expert who is free from the duress caused by the long-drawn and challenging litigation procedures. However, the fact that there are two different categories of experts raises the controversy of impartiality at trial. As Sonenshein and Fitzpatrick (14) noted, an expert with clear directions to provide evidence at trial and another expert whose evidence is basically advisory may have clearly delineated mandates. However, the provisions of CPR Part 35 and Practice Direction 35 normally apply in factual evidence provision rather than giving opinion evidence at trial. Validity of Expert Evidence Expert evidence in court processes is regarded as having the potential to shade more light on issues which are beyond the understanding of conventional fact-finding process. However, members of the court are sometimes ill-equipped to tell whether expert evidence is really objective, because judges have profound knowledge in law only. In the Western legal tradition, numerous cases have seen the input of expert evidence being criticized by courts. But the criticism has not been based on issues which are rather secondary to the substance of these bodies of evidence (Craig, Smieliauskas, and Amernic 200). For instance, the admissibility of expert opinion for most courts is based on the qualification of the expert in question and or the scientific processes which they employed in arriving at the findings. In addition, their previous conduct as seen in other cases in which they were involved may also be of great importance to their involvement in subsequent trials to shade more light regarding a technical issue. Regardless, the former is normally the outcome of the adversarial justice system, whereas the latter is regarded as the outcome of advocacy by various professional bodies seeking to ensure their active participation in trial processes irrespective of the negative outcomes on the key stakeholders. The apprehension is evident from various court cases that have been expended by important Western courts. In the ground-breaking Canadian case of R. v. Mohan [1994] 2 S.C.R. 9, for example, the judges ruled that expert evidence runs the risk of being used to impede other objective pieces of evidence or possible leads to the truth and eventually justice. The court learned that the ideal expert evidence comes coated with scientific language, which is beyond the understanding of the bench or even the other side. The evidence is normally submitted by individuals of impressive backgrounds and thus it is likely to be admitted at trial, irrespective of the weaknesses that may be inherent in it. This is because, carrying out meaningful cross-examinations of expert witnesses can only be meaningfully done by members of the same profession (Craig, Smieliauskas, and Amernic 204). In another case of Finkelstein v. Liberty Digital Inc. [2005] Ch., the American court sitting in Delaware exposed the challenges facing the court in sieving partial experts from objective ones. The court said individuals who claim to be inputting sound, professionally-proven analytic techniques are sought by litigants and, through the objective assessments of their facts, come conflicting or disparate outcomes, even with the application of the same scientific methodologies. These clearly contrasting findings have, given the obligations of various courts of law, imposed upon the trial processes, particularly the judges the duty to come up with careful assessments and conclusions about what they barely have knowledge about. Custodians of Expert Evidence Craig, Smieliauskas, and Amernic (201) noted that while debate persists on whether more statutes have created a meaningful transformation of the behavior of experts to the better, it is apparent that the judicial role in all systems remains the most important avenue to guarding against partiality of the expert witnesses. In light of this, Western courts have realized that they are the pace-setters of expert evidence in their respective jurisdictions and that they must never surrender this noble role to professional bodies. Various courts in different Western jurisdictions are today admitting expert evidence after conducting thorough scrutiny of the same from the time it is offered throughout the admissibility stages because its weaknesses could return to haunt the court even after the case has been completed. Before the passage of various statutory bodies of law regulating the practice since the modern times, the courts in England and Wales, the United States, Canada and Australia have moved in and set up somewhat consistent tests on the conduct of experts. Recent court decisions on the issue usually cite the ground-breaking English decision in R v Ikarian Reefer [1993] 2 Lloyds Rep 68, where it was held that the obligations and accountability of a professional witness was to offer impartial technical support to the trial. By contrast, courts of the United States determine the qualification and conduct of ideal experts depending on the facts and or nature of the case (Craig, Smieliauskas, and Amernic 200-206). This way they permit the presiding judges to apply the Daubert Standard. The common law doctrine is some kind of a yardstick for determining the acceptability of expert evidence that was developed from three important cases, which are generally known as the “Daubert Trilogy”. In England and Wales, the decision in Pearce v. Ove Arup Partnership Ltd & Ors [2001] EWHC Ch 455 provides a more modern and clear instance of the judicial role as the gatekeeper against inappropriate expert evidence at trial. In the case, an expert architect gave testimony on whether the structural design of a house had been unfairly abused in stark violation of the copyright. The court then decided that the professional had acted partially and deviated from his solemn duty to discharge his obligations to the justice process with diligence (Gans 355). The verdict was given immediately after the Civil Procedure Rules in England and Wales had been repealed to involve the services of an expert and a provision that the professional recognize this obligation in his or her statements and opinion evidence. The court observed that the expert failed this test. But still, biased expert evidence is a common problem because there are no clear procedures to deal with experts who have deviated from their fiduciary roles. In the case, the English court observed that in its opinion, it did not believe the expert acted impartially (Gelbach 131-150). However, the court was ill-equipped to impose specific sanctions upon the expert or any other expert who violates Part 35 of the UK Civil Procedure Rules. In addition, the lack of a common system for certification of expert witnesses leaves the process open to virtually anybody who considers himself an expert with the due documents. As such, no accrediting panel can be furnished with a violation of the obligation by a court of law for action (Faigman, Monahan and Slobogin 420). Nonetheless, most experts are part of a professional organization or institute, which could arguably act on unprofessional expert witnesses provided they have been ordered by a court. It is therefore automatic for a judge with an informed verdict to petition a professional body for action over breaches of one’s Part 35 obligations. But the suggested or expected closer working relationship between the judicial processes and the professional’s accrediting body as the guardian against any breaches of the professional obligations continues to attract controversy between the two rather professionally diverse systems. In Pearce, the court petitioned the Royal Institute of British Architects over the conduct of the expert witness (Cuello and Villavicencio 38). The body constituted a disciplinary panel to review the issue and published a report by the end of its sittings, suggesting that the observations of the court had been premised upon inherent factual flaws and wrong conclusions by persons who had very limited to no knowledge about the profession. Eventually, the panel of experts not only disregarded the courts recommendation for a sanction against the “unprofessional expert” but also proceeded to indicate that the court’s decision was inaccurately conceived (Leslie 539-544). Court of Appeal Precedent In light of the controversy, the English Court of Appeal recently sought to formulate a formidable test for determining the validity of expert witnesses which meets the conditions set forth by various professional bodies. The recent landmark decision in Rogers & Rogers v Hoyle [2014] EWCA Civ 257 is likely to bring the courts back to the driver’s seat in terms of regulating expert evidence. The appeal handles two primary issues which are inherent in judicial processes: the position and validity of expert opinion as evidence beyond CPR Part 35; and whether the long-standing doctrine in Hollington v Hewthorn [1943] KB 857 still suffices. The appeal arose from a report published by the Air Accident Investigation Branch (AAIB) after investigations into a deadly light aircraft crash, which claimed the life of a passenger and seriously wounded the aviator. Generally, the AAIB is under the legal obligation to conduct probes into accidents and grave incidents within England and Wales. The organization prepares statements that comprise a mixture of factual findings and advisory opinion. The Court then considered whether the formal report constituted by the body amounted to admissible evidence; and, whether the report should be barred on the grounds of the court’s discretion. The court declared the AAIB report as admissible evidence and disallowed arguments seeking to compel is to use its discretion to set it aside. The determination resulted in the dismissal of the appeal. The Appellant said that the common requirements under CPR 35 and the Civil Evidence Act 1972, Section III constitute a detailed body of law which regulated the admissibility of expert testimony and evidence in judicial processes. As such, expert evidence is only admissible if it is in line with Part 35, unless the court allows exceptional conditions for its application. This is a clear case of the expanding role of courts to regulate preparation and admission of expert witnesses, especially where the statutory provisions are not detailed enough and or conclusive (Cossins 74-113). The admissibility of the AAIB report was controversial, considering that it fell short of the conditions stipulated under the CPR section 35 or complimenting precedents on the issue. In particular, the report was prepared by an anonymous person; no prayers to verify the report as is the tradition of admissibility of expert evidence had been requested or presented at trial, and; the requirements of Part 35 for the preparation of experts was equally unattended to and there was lack of expert’s statement (Faigman, Monahan and Slobogin 430). The Court of Appeal disallowed the grounds upon which the Appellant based his argument, deciding instead that Part 35 is falls short of providing detailed and closed solutions regarding the validity of the expert evidence. The Court noted that Part 35 only polices expert evidence where the professional in question has been directed to prepare and present the evidence to assist with the judicial proceedings. As such, expert evidence which is geared towards providing other solutions is beyond the scope of Part 35 and courts are under the obligation to enforce this kind of expert evidence, particularly in cases where an advisory expert opinion is required to verify the documented expert submissions presented by the plaintiff and the defendant. For this class of evidence conformity with the provisions of Part 35 is needless. Although all expert evidence was admitted through oral submissions, regulation of documentary hearsay evidence is currently under statutory regulations and this encompasses expert opinion. The Principle in Hollington v Hewthorn The long-standing principle in Hollington v Hewthorn [1943] KB 857 is that accurate findings established by other juries are not acceptable pieces of evidence in succeeding civil proceedings or as admissible facts in the trial process. Even though the legislature has worked substantially hard towards merging criminal trial processes with civil proceedings, the Appellate Court said in Rogers said that the principle in Hollington is still relevant to and applicable to factual findings only. The Court used this opportunity to elaborate on the premise of the rule (Gans 353-358). Although, preceding cases invoked and even modified the principle in Hollington as one of the best ways to verify expert evidence, however the latest the English common law in Rogers has overruled the existence of a most effective evidence principle in civil trials. The defense for the principle in Hollington has been transformed into the requirement to administer an impartial trial. It is imperative for impartial proceedings that the verdict at trial should be arrived at by the justice appointed to preside over it (Cuello and Villavicencio 39). Admitting factual evidence arising from another Tribunal, irrespective of its able constitution, would preempt the eventual verdict being premised upon the findings. This is especially true for an individual who neither had competent decision making qualities nor expertise in any pertinent field. The non-expert judgment of an individual other than that of the presiding judge is normally deemed as immaterial and therefore inadmissible under Hollington. The imperative principle of the common law is limiting to the role of expert witnesses and it cannot be easily codified. In Rogers, the appellant submitted that the AAIB report could not be admitted by virtue of the strict test set in Hollington. It was submitted that the parameters of the principle was not restricted to court findings as the trial judge had established, but was broad enough to encompass investigatory findings such the AAIB statement. But in response, the Court said the AAIB report met the admissibility requirements, though not wholly. The sections of the AAIB report which contained statements of fact were permissible in their original status as evidence of fact based on hearsay. The Court went ahead to clarify that sections of the document which contained opinion statements on issues which were inspired by or showed relevant expertise actually qualified the expert evidence test, despite the fact that the whole document per se did not meet the principle in Hollington. Regardless, Justice Clarke sought to demonstrate the judicial role in regulating the admissibility of expert evidence in his statement that where investigation report encompasses opinion statements about plain facts, the expert role is lost, thus triggering their inadmissibility (Ward 515-540). Nonetheless, the Court clarified that it is not reasonable to exclude a whole report from the bodies of evidence before a court on this ground or to include inadmissible evidence contained in a report (Cossins 74-113). Therefore, in striking the balance between the strict test of admitting expert evidence and the relevant opinion statements, the most effective approach, according to the court is the presiding judge to read the whole report and order the exclusion of any accounts that he or she considers as inadmissible. The decision has the potential to prompt judges to read and admit reports which are simple to understand and decline those that they have limited knowledge about. In light of this partiality, the Court rejected an argument that AAIB reports or similar documents should be treated the same way as Lord Bingham did in the BCCI. In the latter case, the judge declared the report as BCCI as inadmissible in Three Rivers District Council v Governor of the Bank of England (No3) [2003] 2 AC 1, on the basis that he was playing the role of a judicial to quasi-judicial role, rather than that of an expert in the case. Although, the Court of Appeal said it had the discretion to disallow the AAIB report from the body of evidence in a way that symbolizes the wide latitude courts have in regulating expert evidence, the judge refused to enforce this discretion. In admitting parts of the report which it considered would be of essential value to the presiding judge held that the admissibility of AAIB statements in civil cases would not substantially impede subsequent investigations by the body. By contrast Canada’s recent case of Gould v. Western Coal Corporation [2012] ONSC 5184, saw an expert being challenged on the grounds of unfairly advancing the interests of the client. The judge particularly stood his ground to ensure that only valid expert evidence was admitted by the court in his statement that the expert witness was inclined to approve of everything that proved the client’s case (Gans 353-358). The court further said that the predilection of an expert witness to abandon his or her professionalism where their expertise is required raises actual issues about the reliability of that evidence in the first place. As such, the constant admonishment of professionals in recent cases serves as a natural reminder to various professional bodies to improve their accreditation standards and help the courts with serving justice rather than advancing certain preexisting interests. While the common law serves as the custodian of quality expert evidence, recent court decisions carefully sums up the challenge between professional bodies and the courts. The gatekeeper role has become directly in conflict with the general condition that the litigants must be given the chance to spearhead the most comprehensive evidentiary record preparation and submissions as in line with the common rules of justice. This conflict can only be settled by the painstaking and consistent enforcement of the evidentiary rules. In R v Abbey [2009] ONCA 624, Canada’s Supreme Court said that court cases calling for the input of special knowledge, a professional in his or her respective field has the latitude to draw inferences and give his rational opinion. The Court ruled that an experts role is to clearly furnish the court with an informed inference which the court, technically, cannot understand. Rogers draws several parallels to R v Abbey in holding that an experts inference is allowable as it helps the Court with technical details of a case which are likely to be beyond the understanding of the bench. Where on the adduced facts a bench can create their own deductions without the input of experts, the courts have declined the experts. Dealing with conflict of interest In English Common Law, the common reference to Woolf Report described the problem of expert advocacy having the roots of inconsistent processes. For instance, most of expert witnesses are initially hired and incorporated in a team of investigators advancing partisan interests and at trial, the experts are confronted with a change of roles; they are required to abandon the skewed interests they were seeking and to provide the impartial expert opinion and other accompanying reports. This is practically impossible. For instance, expecting an expert hired by the defense to exonerate a criminal suspect to be impartial at trial is tantamount to creating contradictions in the trial process as a whole. The same case applies to prosecution expert witnesses. In light of these partialities, the most impartial expert evidence has occasionally been the product of independent experts hired by courts to verify the submissions of both the prosecution and the defense. Courts have gone further to eliminate the issue of conflict of interest among expert witnesses by imposing tight tests to regulate the issue, but the problem still persists. Through Toth v Jarman (2006) EWCA Civ 1028, the English Court of Appeal has given direction regarding an appeal by a plaintiff in a medical negligence claim. The respondent was a clinical officer who attended to the claimant’s child. Despite the medical care, the boy died, prompting the plaintiff to seek compensation for psychiatric loss on the premises that the defendant was negligent in practice. The defendant sought the services of the Medical Defence Union (MDU) and the body mandated an expert to give evidence regarding the issue (Gans 353). The evidence given by the expert was advantageous to the accused, and the judge was persuaded by it at the expense of the expert evidence tabled by the claimant. However, upon appeal, the plaintiff claimed the defendant withheld substantial information suggesting conflict of interest by the defendant’s expert. The expert was an associate of the Cases Committee of the professional body when the defendant’s report was being prepared and thus, she may have had some influence on the process. The Committee is responsible for deciding whether the MDU should offer defense for any specific action by its members (Cuello and Villavicencio 38). Despite the fact that conflicts of interest may have affected the outcome of any expert’s submission, the English Court held that such an issue does not inevitably bar an expert from testifying at trial. The Court further clarified that what should matter is whether the professional’s opinion is impartial of the interests and the trial pressures. Regardless, the Court said that in order to maintain the independence of expert witness, a party that intends to introduce an expert witness with a possible conflict of interest is under the obligation to disclose more information about that conflict early enough in order to facilitate better scrutiny of the issue by interested members of the court (Shaw 368-379). In striking the balance on the issue, the judge discounted the defendant’s claims that the plaintiff had not requested for details on the association of the expert with the professional body. However, if the expert was likely to be unfairly influenced by the conflict of interest, the Court ruled that conflicts that might create material influences should be disclosed by the professional to his or her attorneys who should then pass the information to lawyers representing the other side for purposes of a fair trial (Gans 353-358). However, in declining the submissions by the appeal, the Court held that the operations of the Cases Committee and the subsequent failure to block the professional involved in the trial from deliberations on the proceedings meant that the leaders of the Committee had reasonably believed that the member could ably assist the court with the case. Furthermore, the Court noted that the professional had actually been out of the Committee for half a year prior to the trial. Under such a situation, the expert’s conflict of interest had diminished and could not reasonably be a disqualifying factor (Shaw 368-379). Conclusion Generally, expert witnesses and evidence has been, and continues to be an imperative part of the bodies of evidence admissible at civil and criminal trial. Expert witnesses and the evidence they give help to elaborate technical issues at trial. The experts are regarded as highly proficient in their respective areas of expertise. As such, they are expected to transcend their individual and client biases to give professional evidence and expert opinion only. In many jurisdictions, legislatures have demonstrated a growing trend to codify the regulation of the qualification and conduct of experts. However, statutes and other written legal instruments cannot be comprehensive enough to take into consideration the diverse nature of the cases. As such, courts have increasingly sought to step in and fill the gap by formulating strict tests in regulating the creation and admissibility of expert witnesses. Works Cited Cossins, Annie. Expert witness evidence in sexual assault trials: questions, answers and law reform in Australia and England. International Journal of Evidence & Proof, 17.1 (2013): 74-113. Cossins, Annie. Expert witness evidence in sexual assault trials: questions, answers and law reform in Australia and England. International Journal of Evidence & Proof, 17.1 (2013): 74-113. Craig Russell, Smieliauskas Wally and Amernic, Joel. Assessing Conformity with Generally Accepted Accounting Principles Using Expert Accounting Witness Evidence and the Conceptual Framework. Australian Accounting Review, 24.3 (2014): 200-206. Cuello Alex and Villavicencio, Stephanie. Adoption of Daubert in the Amendment to F.S. §90.702 Tightens the Rules for Admissibility of Expert Witness Testimony. Florida Bar Journal, 88.8 (2014): 38-40. Cuello, Alex and Villavicencio, Stephanie. Adoption of Daubert in the Amendment to F.S. §90.702 Tightens the Rules for Admissibility of Expert Witness Testimony. Florida Bar Journal, 88.8 (2014): 38-40. Faigman David L., Monahan, John, and Slobogin Christopher. Group to Individual (G2i) Inference in Scientific Expert Testimony. University of Chicago Law Review, 81.2 (2014): 417-480. Gans, Jeremy. Case Commentaries. International Journal of Evidence & Proof, 18.4 (2014): 353-358. Gelbach, Jonah B. Expert Mining an d Required Disclosure. University of Chicago Law Review, 81.1 (2014): 131-150. Leslie, John. Refining the System of "Expert Evidence" in English Civil Procedure. European Business Law Review, 25.4 (2014): 539-544. Shaw, Ken. Expert Evidence Reliability; Time to Grasp the Nettle. Journal of Criminal Law, 75.5 (2011): 368-379. Shaw, Ken. Expert Evidence Reliability; Time to Grasp the Nettle. Journal of Criminal Law, 75.5 (2011): 368-379. Sonenshein, David and Fitzpatrick, Charles. The Problem of Partisan Experts and the Potential for Reform Through Concurrent Evidence. Review of Litigation, 32.1 (2013): 1-64. Ward, Tony. Expert Evidence, Judicial Reasoning, and the Family Courts Information Pilot. Journal of Law & Society, 39.4 (2012): 515-540. Read More