The Role and Function of the Expert Witness Author: Dr Robert N Moles October 2007 In speaking of the role

and function of the expert witness we must first acknowledge that any such person may well have two distinct functions. The ordinary witness function The first function may be to give evidence in respect of what the witness has seen or heard. Document examiners may give evidence about documents which came into their possession and what the saw on those documents. Pathologists may give evidence about their observations of tissues or dead bodies. It is important to bear in mind that in this respect, the expert is no different to any other witness. As with any other witness the court or tribunal will need to make an assessment of the reliability of the observations; the circumstances in which they took place; the time of recording of any notes in relation them, and whether there is any possibility for confusion or error. In this regard we must bear in mind that psychological studies have repeatedly demonstrated that eye witness evidence is notoriously unreliable. Indeed, Lord Devlin in the UK stated in a Royal Commission Report that where the principle evidence in any case is principally dependent upon eye witness testimony, it must be taken to carry with it an inherent reasonable doubt. The expert witness function Of course, knowing that a certain witness is bringing some degree of expertise to the court or tribunal, there is a great tendency to assume that the observations of that witness are in some way more reliable than those of other witnesses. However, as recent cases have shown in the UK (we will discuss them shortly) that confidence could well be misplaced. The distinctive role of the expert witness in proceedings is with regard to their ability to express an opinion. A witness will normally be allowed to give evidence of what they saw or heard directly, but they will not be allowed to express an opinion as to the meaning or interpretation of those observations. In normal circumstances, it would be allowable for a witness to say that they heard a loud bang, but it would not be acceptable for that witness to say that they heard a gun shot, for that brings with it a greater element of interpretation. However, there are some circumstances where it is thought to be appropriate for the court or tribunal to seek assistance from someone with established expertise in a certain area to help with theinterpretation of the evidence. Recent classic cases in the UK have involved the interpretation of sickness, disease or injury in young children. Professor Sir Roy Meadow an example

The following details are taken from the judgment in R v Sally Clark in the UK Court of Appeal (Criminal Division) 11 April 2003. Professor Meadow was asked about some statistical information as to the happening of two cot deaths within the same family. His research on the matter was about to be published in a report of a government funded multi-disciplinary research team - the Confidential Enquiry into Sudden Death in Infancy (CESDI) entitled Sudden Unexpected Deaths in Infancy to which the Professor was then writing a Preface. Professor Meadow said that it was at that time the most reliable study and easily the largest and in that sense the latest and the best ever done in the UK. The jury were told that there were factors that were suggested as relevant to the chances of a SIDS death within a given family. They included the age of the mother, whether there was a smoker in the household and the absence of a wage earner in the family. None of these factors had any relevance to the Clark family. Professor Meadow was asked if a figure of 1 in 8,543 reflected the risk of there being a single SIDS within such a family. He agreed that it was. A table from the CESDI report was placed before the jury. He was then asked if the report calculated the risk of two infants dying of SIDS in that family by chance. His reply was: Yes, you have to multiply 1 in 8,543 times 1 in 8,543 and I think it gives that in the penultimate paragraph. It points out that its approximately a chance of 1 in 73 million. He went on to say: in England, Wales and Scotland there are about say 700,000 live births a year, so it is saying by chance that happening will occur about once every hundred years. Of course, when viewed in that light, the claim by Sally Clark that she was not implicated in the deaths of her infants was viewed with great suspicion. Professor Meadow spoke with great authority, and even the defence counsel in the case avoided any cross examination on this issue. However, it is clear that the evidence given by Professor Meadow was quite wrong, and statisticians say that the error is very basic. It has to be assumed that there is no connection between the first and second event. It subsequently transpired that there were infections in the infants and some degree of genetic predisposition to these circumstances. Of course, if one starts with the assumption that a connection between the cases is such a remote possibility, then it is unlikely that the expert will look very hard for any such connection. However, in this case, the information relating to the infections was subsequently found to be on the file it was just assumed not to be significant. Given that experts opinions can have such a determinative effect upon the evaluations of the court, what then are the relevant tests for determining whether an opinion is an expert opinion? The Expert Opinion Test In 1984, the test was stated by the courts of South Australia as follows:

(a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area: and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, as special acquaintance with which by the witness would render his opinion of assistance to the court. [King CJ in R v Bonython, (1984)38 SASR 45, cited by CR Williams Evidence and the Expert Witness in Australian Journal of Forensic Science 26 pp3-7 1994]. In another South Australian case, the trial judge held that evidence regarding battered women syndrome was not admissible. However, when the matter went on appeal, the Appeal Court held that it was properly the subject of expert testimony, because it was regarded by those competent in the area as an accepted field of scientific knowledge. [R v Kontinnen (1991) 56 SASR 114] The view that expert opinion has to be generally accepted within the relevant scientific specialty has been internationally recognised. [Fry v United States 293 F 1013 (DC Cir 1923)] That view has been subsequently refined to allow for legitimate differences of opinion that have emerged within certain fields of expert knowledge. [Daubert v Merrill Dow Pharmaceuticals Inc 931 Fd 2d 1128 (9th Cir 1991). Daubert v Merrill Dow is recognised as a leading American case. There the plaintiffs submitted a number of affidavits from experts about the evidence indicating a link between a drug and birth defects. However, it could not be said that their views were generally accepted within the scientific community. The US Supreme Court took the view that where opinions are held, but which have not yet had the chance to gain general acceptance, then the knowledge must have been arrived at by an appropriate and accepted scientific method. On the basis of Daubert (which has been widely considered by courts in Australia and New Zealand), the factors that one must consider in identifying such expertise, are as follows: 1. The principles used in the derivation of the knowledge must be testable. This means that if the knowledge is not capable of being tested, then whatever it is -- it is not science. 2. The principles used must also have been tested. 3. The knowledge must have been subjected to peer review and publication. 4. It is important to identify the standards for using the method in question. 5. It is important to consider if the method used (as opposed to the knowledge which it gives rise to) has been generally accepted.

[See for example, Osland v The Queen [1998] HCA 75 (10 December 1998). The Australian Law Reform Commission Background Paper no 6 January 1999. Reforming the law on expert evidenceMJA 1998; 168: 53-54. Forensic Sciences from the Judicial Perspective James Wood, Australian Journal of Forensic Sciences, vol 35 2003 pp115-132. From Frye to Daubert, David S. Bell,Australian Journal of Forensic Sciences, vol 32 2000 pp 61-64]. A mere conflict of opinion should not, in itself, determine whether any knowledge is acceptable as expert knowledge. Sometimes science may be at that stage of development where there is a legitimate and justifiable conflict of opinion. Professor William Tilstone had been the Professor of Forensic Science at Strathclyde University, Scotland. In 1984 he came to Adelaide as Director of the South Australian Forensic Science Centre. At a conference in 1986, he explained proper scientific procedures in forensic science. *Where now for forensic science? WJ Tilstone, Proceedings of The Australian Forensic Science Society, Volume 4, Number 1 (April 1986), pp. 12-23]. He defined forensic science as the application of scientific principles to provide information to assist in legal matters. He said it involves both inductive and deductive reasoning. With regard to inductive reasoning he cited Professor Karl Popper as being the leading proponent of falsification. This concept means that scientific observations hold as hypotheses (theories) until some experiment or observation disproves them. [Conjectures and Refutations The Growth of Scientific Knowledge, (1963) Karl R Popper, Routledge and Kegan Paul. This is why the Daubert test emphasises the responsibility of any scientific expert to publish their observations (and the principles for interpreting them), so that they can be subjected to critical scrutiny. Without that, we are left with just the accumulation of untested experience. Professor Tilstone said that whilst analysis is the foundation of forensic science, evidence is the goal. The basic obligation of the forensic scientist is to gather evidence of what has been observed. Having done that, it can then be used as the basis for any inferences which are to be made. He described the various functions of evidence. He said it might be used to indicate some things or eliminate others. Elimination, he said, may be done positively or by implication. He said there is an enormous gap between not eliminating and positively implicating. When experts, for example, talk about bruising being consistent with a blow from a blunt object, all they mean to say is that such a possibility cannot be eliminated. However, it would be far too speculative to say that such marks are a positive indication of such a blow from a particular blunt object. Whilst experts cannot eliminate certain possibilities, their statements to that effect should not be interpreted as carrying the implication of a positive assertion as to some particular cause. Professor Tilstone also noted the important role of scientific evidence in corroborating other forms of testimony.

Professor Tilstone went on to discuss a well-publicised case that had occurred in the UK a few years before he wrote his article; a case which has a certain resonance with the evidence of Professor Meadow. The following discussion of the case is taken from Professor Tilstones article. The case of John Preece 1981 (Scotland) The victim, Helen Wills, had been raped and murdered. Her death was investigated by forensic scientist Dr Alan Clift. Some six years after the conviction of Mr Preece for her murder, Dr Clift was suspended from duties. The Preece case was appealed. The appeal judges took the view that the evidence supposedly indicating that Ms Wills had been in a lorry with Mr Preece would have proved nothing. They said that the merely associative evidence linking Ms Wills to Mr Preece would have been inadequate to convict him -- just as the marks (if any) on Annas legs have no affirmative connection to Keogh. The judges said there had to be some additional incriminatory evidence to support the suspicion that Preece was implicated in some way in her death. Dr Clift said there had been a mixture of vaginal secretions and semen. He said there were certain blood grouping reactions that in his opinion had come from the semen. The other experts at the appeal said that they did not believe Clifts test could distinguish between the responses from semen and those from the vaginal secretions. Clift asserted that he could make those findings, on the basis of his experience. Yet he had not published or explained his method of doing this so that it could be assessed by other experts. As Professor Tilstone said: "Not only were none of the experts called by each side prepared to accept his [Dr Clifts] conclusions, he [Dr Clift] received considerable criticism from the Appeal Court judges who said that, if in fact it had been such a wonderful test, why didnt he publish it?" Professor Tilstone went on to say: "His [Dr Clifts] response to all of this was that the information was there at trial but nobody asked him about any of the points which subsequently were said to be shortcomings, and in particular nobody asked him during the trial what the blood group of the deceased was, and of course the answer to the question was that the blood group of the deceased was A [the same as the accused]". Dr Clift said that important information had been included in some of his working papers, but it had not been included in his court report. Professor Tilstone said: "The appeal was upheld, and the judgement said many things. First and foremost, it said without a shadow of a doubt the individual forensic scientist had failed to meet the standards which the court expected of expert witnesses, and the results were not reliable. Secondly, the court took considerable umbrage at apparent editing [by Clift of his preliminary test report], since Clift, for whatever reason, had not divulged all the tests and results in his Court Report.

Thirdly, he was roundly criticized for only presenting factual information. The Appeal Court was of the opinion that it is the duty of the forensic scientist to provide an interpretation of the findings for the Court. Finally, the Appeal Court was not impressed by the idea that Dr Clift had used a novel and unpublished technique which he claimed could differentiate between semen and vaginal fluids. They felt it should have been published to permit peer assessment and to benefit other forensic scientists, if it had withstood critical appraisal." Professor Tilstone went on to discuss the case of Edward Splatt, whose conviction in South Australia had been overturned in 1984 as the result of a Royal Commission. He concluded by pointing out that: "Finally, in regard to Splatt, the Royal Commissioner underlined the vital obligation lying on the testifying scientist to spell out to the jury, in non-ambiguous and clearly precise terms, the degree of weight and substance and significance which ought properly to be attached to the scientific tests and analyses and examinations, to which he refers. The critical responsibility which rests with the legal persons is to ask such detailed and probing questions of the scientist as are most likely to elicit such evidence. In this context, the primary responsibility must always remain with the scientist." Normally, a single instance of a complete failure of scientific method by a purported expert would justify the immediate suspension of that person from the scientific community of which they were part. It would lead to the investigation of other cases in which that scientist had been involved. This is what happened in the early 1980s in the UK with Dr Clift. As we have noted, similar circumstances have arisen again in the UK with regard to Professor Sir Roy Meadow. Whilst he was not suspended, a number of his cases have now been overturned by the UK Court of Criminal Appeal, and many more are being reconsidered. The General Medical Council, the body in the UK which registers doctors, has begun an investigation into his work. The following finding has been handed down in relation to Dr Williams who conducted the autopsies on the babies in the Sally Clark case in the UK: "Yesterday the General Medical Council said that Dr Williams had failed in his duty to consider all the possible causes of Christophers death. It said that his post-mortem examination of Christopher was so impaired that it could not be considered reliable. 'You failed to discharge the duties of a competent pathologist in such circumstances,'a written judgment said." [Times Online May 28 2005]. The McGee case and expert witnesses The role of the expert witness was also raised in the recent case in South Australia of Mr McGee who was convicted in relation to the death of the cyclist Mr Humphries.

The Law Society of South Australia, through its President, in publicly commenting on the McGee case has maintained that the criminal justice system in this State is virtually flawless apart from an occasional aberration. He has stated in a number of radio interviews that when occasional errors occur, they are fixed by the appellate process. He stated that he thought that the legal system got in right in every case. The Law Society in South Australia seems to take the view that the establishment of the Kapunda Road Royal Commission was effectively a vote of no confidence in the system and seriously undermined public confidence in the whole of our judicial system. It further claimed that the public debate about the outcome of the McGee case was both irrational and irresponsible. Mr Borick QC said that if the Kapunda Road Royal Commission were to adopt that approach it would be pre-judging the very issues it has been asked to consider. From the perspective of those who wish to show that miscarriages of justice have occurred, it would upgrade their task from the extremely difficult to the virtually impossible. It is well established that one of the major concerns of miscarriages of justice is the introduction into evidence of spurious scientific evidence. Expert evidence always has the potential to override the normal fact finding process of the jury and in a case of trial by judge alone, the judge. It must for that reason be treated with extreme caution. Prima facie the issue in the McGee case was relatively narrow. It was claimed that the trial process may have been subverted by the fact that the defence were not obliged to disclose the nature of the expert evidence they proposed to lead in advance of the trial. It was said that the prosecution was ambushed. However, the related problem is that the defence are very often seriously hampered in their examination and consideration of expert evidence led by the prosecution because they are not involved in the investigative process that leads to the production of that evidence. For that reason Mr Borick QC has argued that we should adopt a wider review of our approach to the role of expert evidence. [The submission of Kevin Borick QC to the Kapunda Road Royal Commission. The following discussion is derived from that submission.] His view is that we should properly determine the pre-conditions to be observed before expert evidence is admitted. Factors such as those which relate to the qualifications of the witness, the scientific reliability of the evidence, the presentation of the evidence, the relevance of the evidence and the judicial directions concerning the issue and consideration of that evidence by the trier of fact. A proper examination of those conditions may lead to the conclusion that the evidence was neither relevant nor admissible. The reasoning behind that conclusion, whatever it is, would provide significant guidelines for judges, prosecutors, defence lawyers and juries required to deal with expert evidence in any case in which the issue arises. The benefit of adopting the wider approach is then obvious. There is further compelling justification for the wider approach. The Law Society, again through the President, argues that an outcome may be regarded as unfair by the public but that is irrelevant if the

outcome is arrived at by due process. If so, it is by definition a just result and fairness is not the issue. That argument is consistent with the flawless approach earlier referred to. However, the question is posed whether an outcome is just if it is arrived at by unfairness in the process leading to that outcome? This is essentially the argument being advanced by the former DPP that it is unfair that the defence do not have to disclose expert evidence in advance and can lead to a miscarriage of justice - the ambush argument. To properly consider that argument we should do so in the context of the relationship between justice and fairness in the adversary system. Not to do so would entail the risk that the consideration of this fundamental and in a sense, philosophical issue, would be seriously inadequate. The ambush argument It has been argued that it is unfair to the prosecution that the defence was not obliged to disclose the expert psychiatric evidence it proposed to lead in advance of the trial. That notion stems from the general proposition that the defence is not required to disclose the case they intend to present until the prosecution has closed its case at trial. The general proposition is obviously qualified by the evidential requirement on the defence to advance essential aspects of the defence case during cross-examination of the prosecution witnesses (including expert witnesses) when testimony and opinions are under challenge by defence experts. In the McGee case the qualification did not arise because the evidence was solely within the knowledge of the defence and it was not and could not have been the subject of any evidence led by the prosecution. Against that background and as a result of the way the trial unfolded, significant legal issues now emerge for consideration. At the outset the defence argument that what happened immediately after the collision and in the six ensuing hours was irrelevant to the trial issues. The prosecution countered that the evidence of the failure to stop and render assistance, and presumably the plea of guilty to the charge arising out of those circumstances, was relevant because it demonstrated consciousness of guilt. It is clear that the trial judge was correct in ruling against the defence argument. There are powerful reasons why the evidence of what happened immediately after the collision was relevant, including consciousness of guilt, but by no means limited to that issue. After the prosecutor closed the case McGee gave evidence. On 13 April 2005 at 3.30pm the prosecutors were supplied with a copy of the experts report. That was after McGee had completed his evidence. The expert gave his evidence on 14 April. He told the Court that McGee told him he made the decision not to go back to the scene because of what he thought he would see in relation to the body and the injuries.

It was put to him in cross-examination that in relation to the same question, McGee told the jury that he did not know why he did not stop. The explanation for that difference was clearly relevant to the jurys assessment of the experts opinion. If the jury accepted McGees evidence that he did not know why he acted as he did then that evidence impacted upon a fact relied upon by the expert in arriving at his opinion. No application was made by the prosecutor to have McGee recalled for further cross-examination on that issue. In the final stage of the trial the jury were directed that consciousness of guilt was not established if there existed a reasonable possibility the experts opinion provided a valid explanation for the failure to stop. In other words the criminal standard of proof applied to a fact (and in this case opinion) that was not an essential component of the ultimate issue. Legal issues The prosecution were confronted with a serious difficulty because of the timing of the disclosure. An issue to be considered is whether that was unfair. It would not necessarily be unfair if the prosecutor had an available remedy. It could be said that He had a number of alternatives: 1. A fundamental objection to the admissibility of the evidence could have been that it was contrary to the plea of guilty on the leaving the scene charge. 2. There could have been an application for an adjournment to provide time to properly consider the issue and obtain further opinions if necessary. 3. There could have been an application to recall the accused for further cross-examination. There is ample authority for the proposition that the opinion evidence tendered by the defence was inadmissible. For example in Turner [1975] QB 834 at 841 it was held: "Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to stresses and strains of life. It follows that the proposed evidence was not admissible to establish that the defendant was likely to have been provoked. The same reasoning applies to its suggested admissibility on the issue of credibility. The jury had to decide what reliance they could put on the defendants evidence. He had to be judged as someone who was not mentally disordered. This is what juries are empanelled to do. The law assumes they can perform their duties properly. The jury in this case did not need, and should not have been offered, the evidence of a psychiatrist to help them decide whether the defendants evidence was truthful." In principle, there should be no reason why an accused could not be re-called subject to any unfairness that may result. If the objection was upheld or in the alternative the application granted, either the present problem would not have arisen, or any perceived unfairness would have been substantially dissipated.

Expert opinion evidence may only be introduced to assist the court to interpret facts which have been established on admissible evidence. It would appear that the opinion being proffered by the expert was based upon facts which were contrary to those which had been put forward earlier in the trial that McGee was not aware of why he left the scene. Therefore, to render the opinion admissible, the defence would have to have laid down some evidentiary basis upon which the opinion could have been based. That means that McGee would have had to tell the court what he presumably had told the psychiatrist that he did not return to the scene because he was apprehensive of what he might see. The failure by the prosecutor to pursue any of those remedies (perhaps understandable, given his limited opportunity to consider his position) or if the judge had ruled against him, may have resulted in unfairness - but it is difficult to see how that unfairness could be corrected given the way the system operates. That situation illustrates a weakness in the system. It is submitted that if the Protocol which Mr Borick has proposed - had been in place - the system would have worked considerably better than it did. It is further submitted that the direction to the jury as to the way in which they approached their consideration of the expert evidence was wrong. Because of the acquittal, that direction cannot be judicially reviewed. Again, it illustrates a weakness in the system. The question which arises is whether the desirability of maintaining public confidence in the system should override the basic rule that an acquittal cannot be challenged. It is offensive to the rule against double jeopardy that an accused should be re-tried because of judicial or legal error in the trial process. That is the price which may have to be paid to avoid a miscarriage of justice. The necessity to avoid miscarriages of justice, whether it be through a wrongful conviction, or a wrongful acquittal, is the ultimate issue. A recommendation for a Judicial Protocol regarding expert opinion In the light of the foregoing problems, Mr Borick QC has suggested that the system would be enhanced if practical procedures were in place to establish the proper basis upon which expert opinion evidence is put forward. An example of such a protocol would be as follows. Preamble It is well established and accepted that expert opinion evidence should be treated with great caution because of its potential to distort the fact finding process. This observation applies to all types of expert opinion evidence including psychiatric and psychological evidence. It is recommended that a judicial protocol should be established in order to test the admissibility of expert evidence and to control the use of that evidence in the trial process.

The protocol should be applied irrespective of whether the prosecution or the defence proposes to lead the evidence. The Protocol The court must establish the qualifications of the proposed expert witness. This must include details of specific training and experience in the area of special study in question. The court must ensure that the factual basis which would render the opinion admissible is before the court. The court must identify the matters of scientific opinion which are to be introduced, and further establish the scientific reliability of the proposed opinion. The court must satisfy itself that the scientific theory on which the opinion is based has been subjected to appropriate testing, publication or peer review - and that it has been arrived at in accordance with accepted scientific methods. The court must clearly identify any assumptions on which the opinion is based The court must satisfy itself as to the existence and maintenance of proper records in relation to the genesis of the opinion. The court must satisfy itself as to the relevance of the opinion. The court must satisfy itself as to the necessity of the opinion. The court must satisfy itself that the opinion evidence is consequential of the scientific skill claimed. The court must be satisfied that the opinion can be expressed in language that the court or jury can understand so that the expression of the opinion enhances understanding of the issues in question. There must be precise identification of the judicial directions required before the evidence is admitted including resolution of any disputed evidence The court must make an assessment as to whether any prejudicial effects of the opinion are outweighed by the probative value of the opinion. The court must ensure that the expert provides suitable undertakings on oath that full disclosure of all relevant findings (negative as well as positive) have been made. See also the Canadian Federal Working Paper in relation to miscarriages of justice which is referred to in the Links section of this site for discussion of a wide range of issues (including that of expert witnesses) in relation to possible miscarriages of justice.