Discredited Expert Witnesses Used as Scapegoats for the Failings of the System of Criminal Justice - Case Study Example

162903 A few "discredited"expert witnesses have been used as scapegoats for the failings of the adversial system of criminal justice When looking at the position with regard to discredited experts it is necessary to bear in mind the role of an expert witness in court1. In general terms expert witnesses are called upon to give their opinion as to the probable cause of an event2 or the likelihood that samples found at a scene match that of the accused. The most common form of expert evidence is medical evidence3. Frequently doctors are asked for their expert opinion as to how any injury might have occurred. In a murder case they will be asked to comment on time of death, cause of death and whether the injuries inflicted on the victim by the accused were an operative cause of the death. This will include detail concerning any weapon that has been recovered as well as splatter marks on the clothing of the defendant if the victim has bled in the attack. A lot of murders are usually through stab wounds and the experts can tell from the splatter pattern on the clothes of the accused where they were stood in relation to the victim at the time of the killing. This evidence can lead the doctor to be able to draw a conclusion whether the killing was as a result of self defence or whether the attack was a prolonged and sadistic attack. Both the body of the victim and that of the accused will be scrutinised and the experts have the ability to decipher whether any bruising on the accused bolsters an argument that they were being attacked and that they were acting in self defence when they maimed or killed the victim. The responsibility of experts in these matters can be a little daunting as a misread post mortem or analysis of bruising on a body might lead to the wrongful decision4 that the accused was acting in self defence when he killed the victim. Given that juries are often swayed by an expert opinion as to how any injury might have been caused it would seem fair that anyone holding themselves out to be an expert should be liable if they make a mistake5 as to the cause of an injury6. The degree of responsibility and the punishment they could face is questionable since they are only offering an opinion. In the light of recent issues surrounding expert evidence and the quashing of the convictions against Sally Clark7 and Angela Cannings it seems obvious that too much reliance is often placed on expert evidence as without the statement from Sir Roy Meadow those accused might not have been found guilty. Although the decision to quash the convictions is the right decision the question that is raised is whether the expert should be punished for giving evidence that helped convict these women. In this particular the doctor has become the subject of investigations by the British Medical Council and all of his expert opinion on cases where the accused has been found guilty is under scrutiny. His medical career is now ruined as a result of these investigations. Although in some ways it would seem fair that the doctor should be treated in this manner as it was his evidence that helped to wrongly imprison people it does seem a little unjust that such reliance is placed on expert evidence that can lead to experts being scapegoated when things go wrong. Further examples where expert evidence has been relied on for a conviction and where such evidence was later proven to be false includes the Birmingham Six who were freed in 1991 after serving 16 years in jail. In a House of Commons debate in March 2005 the role of experts was discussed8. The House stated that expert evidence should provide the court with information that is based on scientific results. The judge and the jury rely on the expert to decipher these results as it is beyond the scope of either of these to be able to disseminate the information and determine what it means. The court has the responsibility of deciding whether an expert is required and it is also their responsibility to check the competence of that expert. Where the evidence of the expert is clear and there is no other evidence to contradict that evidence the jury has to accept the evidence of the expert. In the appeal made by the defence counsel for Angela Canning it was stated that "If the outcome of the trial depends exclusively, or almost exclusively, on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore, unsafe to proceed9". In the case of R. v Nugent (Ryan) [2003] EWCA Crim 3434 the courts disallowed an appeal where the basis of the appeal was that at the original trial the defendants had been found guilty on the evidence of an expert witness who had been discredited previously in a different case. The reasoning behind the refusal of the appeal in this instance was that the defence expert had not challenged the prosecution expert in any form during the original hearing which could be taken as evidence that they accepted the evidence of the prosecution expert to be accurate. If they were not convinced of the accuracy this should have been challenged in court. To try to combat the difficulties in finding suitably qualified experts the Council for the Registration of Forensic Practitioners was established in 1999. This assisted the courts by producing a list giving details of the competence of the forensic practitioners. The aim of the CRFP is "to promote public confidence in forensic practice in the UK" to promote public confidence in forensic practice in the UK". The CRFP aims to achieve this by ensuring that those who are registered stay up to date with the latest practices and maintain competence. Those who fall below the mark are likely to be disciplined10. Not all those that are registered with the CRFP are expert witnesses. Many of those registered are scenes of crime officers. At present membership of the CRFP is voluntary and there are no plans to make it compulsory. Concern has been expressed at the limitation of the register. It has been observed that even discredited experts might be able to gain registration through the CRFP. With Sir Meadows his evidence was discredited on statistical evidence he gave to the court. As his speciality was in paediatrics he would rightfully be eligible to apply to be on the register of experts in the field of paediatrics and no account would be taken of him having been discredited previously. Andrew Keogh from Tuckers Solicitors criticised the fact that "there is nothing within CRFP that is committed to a remit of evidence-based practice", and suggested that "it would be of more benefit to the criminal justice system if a comprehensive process of research, evaluation and peer review took place on a rolling basis" Karen Squibb-Williams for the CPS expressed concerns that "registration cannot be a panacea for exercising a judges discretion" and called for "absolute independence and integrity in the auditing of that registration and validation of the accreditation that goes with it” Professor Sue Black pointed out that the members of this community were all responsible for accrediting each other and that they had a vested interest in increasing the number of people in their field with CRFP registration Following the quashing of the conviction of Sally Clark recently there have been many questions raised as to the role of medical experts and their duty to disclose key evidence11. There has also been much debate around the way in which this evidence was used to secure her conviction12. Although experts are used in civil cases as well as criminal cases the greatest area where failings appear to be discovered is in criminal law. In some cases an expert can become unwittingly involved such as might be in the case of a forensic pathologist performing an autopsy. At the time of preparing the report the pathologist might not be aware that a criminal charge might be pending and could find his report being used by the prosecution for a criminal trial. In other cases the expert is specifically approached by the police or the CPS and asked to prepare a report which will be adduced at court. To try to address the situation were experts have been discredited the Civil Justice Council Protocol for the Instructions of Experts to give Evidence in the Civil Courts was brought into force from September 2005. This protocol sets out the duties owed by the expert to the client and to the court. The discrediting of Sir Meadows as mentioned above has highlighted the need for evidence to be impartial and unbiased. With Sir Meadows the GMC has accepted that the doctor did not intend to mislead the court although they still found him guilty of serious professional misconduct. This has led to him being struck off the register. The publicity surrounding this case has led to many experts being reluctant to give their opinion either in civil or criminal cases. The Protocol mentioned above only deals with the civil courts and does not cover those requested to give evidence in criminal procedures. This new protocol asks the expert to consider whether they would express the same opinion if they were given the same instructions by the opposing party. Failure to apply this method for deciding on how evidence should be presented can lead to cost orders being imposed on the experts and in some cases the debarring of experts’ evidence from the proceedings. In Phillips v Symes13 the court at first instance held that the expert had recommended that in his view the defendant lacked the necessary mental capacity to give evidence and go through cross-examination. The court looked at whether the general principle of a witnesss immunity in respect of the evidence he gives should apply. It was held that the evidence was flawed and the expert had breached his duty to the court. The court concluded that "It would be wrong of the court to remove from itself the power to make a costs order in appropriate circumstances against an expert witness who, by his evidence, causes significant expense to be incurred and does so in flagrant and reckless disregard of his duties to the court" (The Honourable Mr Peter Smith). Experts will have to ensure that they are fully instructed by their practitioners and that they have all the necessary information to be able to make a decision based on an independent view point and not in favour of what their client wants to be told. The fact that they are placed under a duty to consider the evidence they are to give from the perspective of representing either party in the hearing should restore the confidence in their testimony and help to abolish the harm done by experts that have been discredited14. The fact that the experts can face sanctions for not doing their duty correctly should also bolster the confidence of the general public towards expert testimony. At present as this system only applies in civil proceedings there is still the shadow of discredited witnesses hanging over experts in criminal cases. To a certain extent the adversarial system is hiding behind the discredited witnesses rather than taking responsibility for its own failings. In the cases mentioned above, Sir Meadows has been scapegoated as being responsible for the imprisonment of the accused. In reality the system itself is as mush to blame as they failed to properly investigate alternative causes of the children’s death, preferring instead to rely on the testimony of a so called expert that the mother’s were suffering form Munchausen’s syndrome by proxy. It was easier to accept this as an explanation then look for an underlying cause such as cot death or some form of illness. When faced with evidence that is backed up by expert opinion the courts have had a tendency not to challenge that opinion on the basis that the expert specialises in that field and is therefore in a position where his judgment should be trusted. To avoid such errors the courts should consider employing more than one expert witness. With tight budgets set for the police force and the Crown Prosecution service neither organisation can justify having more than one expert consult on a case unless the charges are of a sufficiently high degree that absolute proof is needed. In general terms the courts operate on the basis that in summing up to a jury they judge will guide the jury on the reliability of the expert’s opinion. the general theme that seems to be adopted by the judges is an emphasis on the qualifications of the expert which is likely to sway a jury towards a guilty verdict rather than not guilty. In the past the parents of children with brittle bone disease have come under scrutiny and attack by the courts for supposedly has inflicted injuries on their child. The recent advances in medical science have made it easier for doctors to diagnose such conditions and there is less likelihood of someone being falsely accused of harming such individuals. The conclusion that can be drawn from the above is that the courts have a tendency to blame the failures of the court case on the evidence presented by the witness. The CPS appear to point their finger at the expert witness and hold them out as being responsibility for the wrong verdict being returned. In actuality the counsel for the prosecution and the judge can often bring about a guilty verdict by reminding the jury of the irrefutable evidence of the expert witness and have a tendency to portray the expert’s opinion as flawless and the only verdict that can be read from the expert’s testimony is that the accused is guilty. Bibliography Allen, C, Practical Guide to Evidence, 2nd Ed, 2001, Cavendish Publishing Ashworth, A and Blake, M The presumption of innocence in English law [1996] Crim LR 306 E Elliott, C, & Quinn, F, Criminal Law, 3rd Ed, 2000, Pearson Education Gibb F. Mothers release brings call for review of 15 cases. 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