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Overview

Expert witnesses make observations or draw inferences that lay or judicial fact finders would not be able to make for themselves. It is, nevertheless, the jury or judge and not the expert that is the ultimate fact finder. It is therefore central to the role of expert witnesses, and to their ethical obligations, that they give a clear account of their conclusions and reasoning that enables the fact finder to reach an informed and independent judgment as to how far expert evidence can be relied upon. In adversarial systems of trial, great reliance is placed upon cross-examination and the ability to call opposing experts to ensure that experts are held accountable for their methods and that fact finders are not misled. In practice, however, these methods have serious shortcomings and need to be combined with other forms of accountability such as oversight by professional bodies.

The Role Of The Expert Witness

The role of expert witnesses differs from that of ordinary witnesses of fact in the scope they have to draw inferences from their own observations and those of other witnesses. In this respect, the expert is an exception to the general preference, at least in the common-world, for witnesses to stick as closely as practicable to an unvarnished account of what they saw and heard, leaving the fact finder – often the lay jury – to draw its own inferences from those facts.

“Expert evidence” is a much wider category than “scientific evidence,” although arguments about exactly which experts qualify as “scientists” are not particularly helpful. Gross and Mnookin (2003) offer a taxonomy which usefully captures the range of roles expert witnesses may play. Much expert evidence, they point out, is primarily descriptive. Experts may observe phenomena that lay people would miss, or know the meaning of terms (e.g., in a drugusing subculture) that a jury might not, or be able summarize information by means of a calculation (“the deceased’s blood alcohol level was three times the drink-driving limit”). A second role for experts is that of instructing fact finders as to general propositions relevant to the case, such as the nature of mitochondrial DNA, the characteristic symptoms of autism, or the norms of acceptable medical practice. The role that gives rise to the greatest difficulty, however, is that of assessment of evidence. Experts draw upon their general knowledge and experience to offer opinions on diagnosis, causation, prognosis, identity – “this fingerprint matches that of the defendant” – or value (e.g., of drugs or stolen goods). In this role, experts go beyond merely providing information to the court, to interpret the factual or normative significance of the phenomena that they or others have observed. In doing so, they are undertaking a task that is normally reserved for the judge or jury.

Expert witnesses have to accept that their cognitive authority is, in principle, subordinate to that of the court: “forensic experts.. .agree to surrender ultimate control over the way scientific evidence becomes built into constructions of factual reality” (Smith 1989, p. 71). If challenged to justify lay fact finders’ control over the “construction of reality,” lawyers might point to the fact that legal disputes are rarely resolved by scientific evidence alone (Dwyer 2008), and that the “reality” that emerges is one that the community as a whole is asked to accept as a legitimate basis for social action – in particular, punishment. The question for the court is not what the experts think is true but what the community at large can accept as true, given such trust as it can justifiably place in the experts. The court might be able to assess the substantive merits of the expert’s argument, but even if it cannot, judges or juries may have good reason to believe that the expert’s conclusions are soundly based, albeit for reasons the court does not fully understand (Hardwig 1994). Even if they understand a good deal of an expert’s reasoning, lay fact finders generally have to take some of what an expert says on trust. So an important part of the expert’s role is to communicate information in a way that the fact finder will both understand and trust.

The dynamics of trust differ according to whether the system of trial approximates to an inquisitorial or an adversarial model.

In inquisitorial, civil-law systems, where experts are normally appointed by the court, judges (or coroners in some common-law systems) are likely to trust “their” experts as a matter of routine, although that trust may be challenged in exceptional cases (Bal 2005). The adversarial model has been described, with some exaggeration, as one of “institutionalized pure mistrust” (Wynne 1989, p. 33). The expert is called, almost invariably, to support one side in a contest, so their evidence cannot be accepted as something like objective truth until the other side has had an opportunity to challenge it. Conversely, the absence or failure of a challenge is taken to indicate that the expert evidence is reliable. In a circular process, what is unchallenged appears unchallengeable, and therefore remains unchallenged, as was until recently the case with fingerprint evidence (Cole 2001; Fingerprint Inquiry Scotland 2011). Where the evidence is more contentious, the adversarial system puts a premium on the ability to persuade juries (or judges), and can be accused of distorting the expert’s role by making presentational skills more important than scientific acumen (House of Commons 2005).

The potential for conflict between an expert’s roles as servant of the court and as a member of the prosecution or defense team is exacerbated by the fact that experts are involved in the investigation as well as the prosecution of crime. The emphasis in forensic work appears, indeed, to be shifting away from the courtroom and towards what Barclay (2009, p. 339) calls “a completely integrated approach” to major criminal investigations, “with detectives, crime analysts, forensic scientists, pathologists and behavioural experts all part of the same team.” This “paradigm shift,” as Barclay describes it, requires that scientists be given much more information than would previously have been thought desirable about lines of enquiry being pursued by the police, and offer more “personal interpretations, soft facts, and opinions expressed in shades of grey” (Barclay 2009) than they would when giving evidence in court.

There is a tension between the usefulness for investigative purposes of interpreting evidence in context and the need for objectivity, which may be undermined by knowledge of contextual information. Such information may simply lead experts to see what they expect to see (Dror and Rosenthal 2008). Risinger et al. (2002, p. 28) argue that for a forensic scientist to rely on any information outside her own domain is to “abuse her warrant,” since it is for the jury, not the scientist, to assess the nonscientific evidence of the “case circumstances.” On the other hand, it appears legitimate for scientists to take contextual circumstances into account in deciding which hypotheses to test and how to test them.

Tensions between investigative and courtroom roles can also arise in civil law, inquisitorial systems. The leading case on expert evidence in the European Court of Human Rights, Bonisch v. Austria (1987) 9 EHRR 191, concerned a prosecution for food hygiene offenses in which the President of the institute who initiated the prosecution also served as court expert at the trial. The defendant was able to call another expert, but as a mere “witness” this person had a lower status than the ostensibly impartial “expert” appointed by the Court. This was held to be a breach of the principle of “equality of arms.” Jakobs and Sprangers (2000, p. 383) report that in “almost all European countries” there is some provision for the state to bear the costs of appointing defense experts, “but this situation creates some kind of control by the state” since prosecutors, judges, or legal aid authorities have discretion whether to provide for a publicly funded expert.

Adversarial proceedings – and the “equality of arms” principle makes all European criminal proceedings adversarial to some extent – depend upon experts being available to testify for the defense as well as for the prosecution. Defense lawyers also need experts to advise them on possible weaknesses in prosecution evidence. In practice, access to such resources on the part of the defense may not be forthcoming – particularly in the USA, where judges routinely deny expert assistance to indigent defendants (Giannelli 2003; Garrett and Neufeld 2009). Both the “battle of the experts” that sometimes develops, and the situation where a prosecution expert faces little effective challenge, raise important ethical issues about the limits of appropriate persuasion.

The Ethics Of Expert Witnessing

It is uncontroversial that the first duty of a witness is to tell the truth. However, because the roles of the expert include “instruction” and “assessment” as well as “description” (Gross and Mnookin 2003), telling “the whole truth” is not such a simple matter for an expert as it might appear to be for an ordinary witness of fact. Experts implicitly warrant not only that the factual content of their evidence is true, but that the opinions they express are based on good reasons. Given the reliance that others will place on their testimony, it “is unethical for expert witnesses to hold or express unjustified beliefs” (Sanders 2007, p. 1542).

In England and Wales, the Criminal Procedure Rules (CrimPR) and accompanying practice directions have recently codified the ethical duties of experts to ensure that their opinions are justified, and to provide the court with the information it needs in order to assess whether they are justified. According to the CrimPR, the duty of the expert is to “help the court to achieve the overriding objective” of dealing with cases justly “by giving objective, unbiased opinion on matters within his expertise” (r. 33.2).

One form of “objectivity” in expert evidence is that the expert states what she takes to be what any competent expert would observe or conclude given the same information (Smith 1989) – or if not, she explains why divergent views are possible. The duty to be objective and unbiased also entails that the evidence that experts give should not be colored by any interest they may have in the proceedings. Yet it is arguably unrealistic to expect experts involved in criminal cases to be entirely disinterested, for at least four reasons. First, as we have seen, expectations may create unconscious biases: Experts are only human, and human beings tend to see what they expect to see. Secondly, in an adversarial system there are inevitably pressures to identify with the party and lawyers by whom one is called. Thirdly, many experts are subject to the pressures of the market, either as individual professionals or as employees of commercial service providers. In such an environment, the probative value that experts can claim for their evidence, its power to discriminate between conflicting hypotheses, may be directly correlated with its market value (Lawless 2011). Fourthly, serious crimes arouse strong emotions to which experts are not immune, particularly if their work involves examining or treating the victim. It is questionable whether complete objectivity is possible in this situation (Candilis et al. 2007); at all events, it is hard to judge objectively whether one is objective or not! What is fairly uncontroversial is that experts should “strive for objectivity” (AAPL 2005, Section IV). This involves not only telling the court what one honestly believes, but explaining the reasons for and against those beliefs: what Candilis et al. (2007, p. 21) call the “duty of transparency.”

Transparency involves stating the basis of one’s opinions in a way that enables the court to make its own assessment of the reliance it can place on them. The ethical duty of transparency has at least four aspects.

Transparency As To The Basis Of The Expert’s Evidence

When an expert is testifying about matters beyond the knowledge of the court, the court may not be in a position to evaluate independently the reasoning on which the experts’ conclusions are based. The court may then have little choice but to defer to the expert, assuming that – given their training and experience in the application of an established body of knowledge – experts probably have good reasons for what they assert (Hardwig 1994). Where the expert is relying not on specialized observations but on matters that the court is equally, or more, competent to assess, this kind of deference to expert authority has no place. The court needs to know when this is the case, both so that unwarranted deference can be avoided and to guard against “double-counting” the evidence.

This points to the particular importance of transparency on the part of experts who engage in the kind of contextual interpretation that Barclay’s (2009) “new paradigm” of forensic science, and many kinds of medical or psychological diagnosis, require. For example, it is important for pediatricians reporting alleged signs of sexual abuse to make clear when they are relying on hearsay information or behavioral signs in interpreting ambiguous physical signs (Lillie and Reid v Newcastle City Council [2002] EWHC 600 (QB), [395]–[396]). Hence, the requirements in the CrimPR state that an expert’s report must include the following:

(a) Give details of the expert’s qualifications, relevant experience and accreditation

(b) Give details of any literature or other information which the expert has relied on in making the report

(c) Contain a statement setting out the substance of all facts given to the expert which are material to the opinions expressed in the report, or upon which those opinions are based

(d) Make clear which of the facts stated in the report are within the expert’s own knowledge (r. 33.3)

Transparency As To Disagreement Within The Expert Community

One of the reasons that may induce a court to accept an inference drawn by an expert is that it derives from premises that the whole community of qualified experts accepts. The court, however, will usually be dependent on the expert witnesses themselves to tell it whether a consensus exists. Experts should “not give the impression that [they] speak for the community of experts when [they] do not. When the community of expert opinion is divided, there is an obligation to say that it is” (Hardwig 1994, p. 92). Or as the CrimPR put it, “where there is a range of opinion on the matters dealt with in the report,” the report must include the following:

Summarize the range of opinion
Give reasons for his own opinion (r. 33.3(1)(f))

Transparency As To Areas Of Uncertainty And Conflicting Evidence

The Criminal Procedure Rules require that “if the expert is not able to give his opinion without qualification, [his report must] state the qualification” (r. 33.3(1)(g)). This is particularly important where the limitations of research may afford grounds for reasonable doubt – even if the experts personally have no doubt about their conclusions. For example, one should not declare confidently that certain features of a young girl’s vagina and hymen are abnormal and indicative of penetration, while failing to mention that very little is known about the incidence of similar characteristics in non-abused girls (R v T [2008] EWCA Crim 3229).

Transparency And Clarity In Explaining Degrees Of Probability

Terms like “match” or “similar in all microscopic characteristics” may be highly misleading to juries (McQuiston-Surrett and Saks 2009). The phrase “consistent with” can make neutral evidence – evidence equally consistent with the prosecution or defense hypotheses – sound as if it is highly probative (e.g., Barry George v R [2007] EWCA Crim 2722). On the other hand, evidence couched in statistical terms but based on very rough estimates may confuse the jury and create an unwarranted “verisimilitude of mathematical probability” (R v T (footwear mark evidence) [2010] EWCA Crim 2439, [86]). The most candid way of expressing such testimony would appear to be to give a “subjective probability estimate” which makes clear that it is “a product of the examiner’s subjective judgment – a guesstimate” (McQuiston-Surrett and Saks 2009, p. 438). Such estimates can be expressed in the form of a “likelihood ratio” – the relative likelihood of a particular finding given either the prosecution hypothesis (e.g., that the defendant’s shoe made a certain mark) or the defense hypothesis (i.e., it was a different shoe). The Court of Appeal in R v T controversially ruled that likelihood ratios should not be used at all in the absence of satisfactory data. It is difficult to see how a bar on thinking in terms of likelihood ratios can be enforced, and to insist that any statistical “guesstimates” must not appear in the expert’s report appears to defeat the Court’s emphasis on transparency about the methods an expert has used. The use of Bayesian methods (in which likelihood ratios are a central element) may also have an ethical advantage in that it compels the expert to consider the likelihood of hypotheses favoring the defense as well as the prosecution; this appears to have been one reason behind the introduction of the Bayesian CAI (Case Assessment and Interpretation) model used in British forensic science (Lawless 2011, pp. 677–679).

Another controversial form of probabilistic evidence is the prediction of future violence. While some psychiatrists consider it inherently unethical to offer such evidence given the high rate of false-positives in such predictions, Grisso and Appelbaum (1992) argue that it is ethically permissible to give estimates of risk based on sound scientific research. The difficulty with this position, as pointed out by Litwack (1993), is that in many cases where psychiatrists would consider there was clearly a high risk if an offender were released (e.g., the patient has committed serious violence before when actively psychotic and is unwilling to take antipsychotic medication), actuarial data about the risk of reoffending may not be available because of the rarity of people in such supposedly high-risk categories being released.

An expert witness’s duties of objectivity and transparency may be difficult to follow to the letter if the expert is also acting as a therapist to the victim (e.g., in a sexual assault case) or to the defendant. It may be difficult to combine the objectivity of a witness with the empathy of a therapist. A therapist’s first duty is to the interests of the patient, a witness’s is to the court, and these duties may conflict, especially if the witness gives evidence that is harmful or traumatic to the client (Strasburger et al. 1997). Giving evidence may also conflict with the duty of confidentiality to a patient (e.g., Bal 2005). Such conflicts do not arise in every case, but a potential witness must always consider whether giving the most honest and objective possible evidence is compatible with therapeutic goals and with respect to patient confidentiality.

Accountability

The report of the searching Inquiry into Paediatric Forensic Pathology in Ontario defines accountability as “the obligation to answer for a responsibility conferred” by explaining and justifying one’s decisions and actions (Goudge 2008, pp. 332–333). In this sense, the courtroom itself is one of the most important fora in which expert witnesses are called to account. In some respects, this can be effective. Timmermans (2006) found that it was the prospect of being called to account in court for every inference they drew that led to the cautious approach adopted by the medical examiners he observed. The care that is usually taken to document the “chain of custody” of DNA samples might also be attributed to the accountability exercised through courtroom cross-examination (Lynch et al. 2008). “History has shown” Aronson (2007, p. 211) concludes in his study of DNA profiling, “that a competent defense review of forensic evidence can reveal problems that are either consciously ignored or overlooked by forensic scientists and prosecutors.” However, lack of knowledge, motivation, or ability among defense lawyers and lack of resources to pay for alternative experts allow many errors in forensic evidence to go undetected. Garrett and Neufeld (2009) studied 137 transcripts from US trials where defendants were convicted, partly on the basis of forensic evidence, and later exonerated by DNA evidence. In this admittedly unrepresentative sample of trials, they found that 60 % included scientific evidence that was “invalid” in some respect, usually either the misstatement of empirical data or the drawing of conclusions unsupported by the data. Invalid testimony was rarely subject to cross-examination, and the defense was rarely able to call its own experts, as courts declined to fund them. As Gross and Mnookin (2003, p. 158) observe, “If we are going to rely on the adversary system to guarantee competence and honesty in expert evidence we must actually have an adversary process. When one side is absent, the result may be disastrous.”

In addition to competent and adequately funded defense lawyers, adequate disclosure of the basis of expert evidence is essential if the trial is to be an effective form of accountability. Lack of such disclosure has been central to several notorious miscarriages of justice in England. This issue is closely linked to the ethical duty of transparency discussed above. Giannelli (2007) cites several US cases where fraudulent or incompetent forensic scientists have disclosed only very terse and cryptic reports, thus increasing the difficulties the defense face in cross-examining them. The Federal Rules of Criminal Procedure do require that the summary of expert evidence disclosed to the defense must “describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications” (r. 16(1)(G)), but this falls far short of the duties of transparency set out in the English Criminal Procedure Rules. The Fingerprint Inquiry Scotland (2011) called for fingerprint examiners to be “more transparent and ultimately more descriptive of their methodology, work practices and the specific factors involved in any particular conclusion” (para. 37.51) so as to facilitate more effective scrutiny of their work in court.

As Giannelli (2007) points out, even when criminal courts do expose shortcomings or misrepresentations in an expert’s work, this does not necessarily prevent the same expert from testifying again in other cases. In this respect, civil-law systems with their panels of court-appointed experts have an advantage, since there is usually some form of disciplinary procedure by which experts can be removed from the panel (Jakobs and Sprangers 2000).

Given the uneven nature of the trial process as a form of accountability, it is often thought desirable that expert evidence given at trial should be scrutinized by other experts. The Ontario inquiry discussed a number of mechanisms operating in various parts of Canada for holding pathologists and forensic scientists accountable for evidence they give in court, including observation of a forensic scientist’s testimony, or examination of the transcript, by a manager; asking prosecution and defense counsel to complete questionnaires on the expert’s evidence; and having each forensic pathologist accompanied to court at least annually by another pathologist who observes and evaluates their testimony (Goudge 2008, p. 358). The report recommended an annual process of peer review for forensic pathology testimony, which “should be documented and encompass a process of discussion and feedback” (Goudge 2008, p. 359).

In England and Wales, the Forensic Science Regulator (2011) has issued a Code of Practice which includes provisions that providers whose staff give evidence in court should be able to demonstrate, inter alia, “that the principles, techniques and assumptions they have relied upon are valid,” that the inferences they draw are sound and alternative hypotheses have been considered, that their methodology has been considered by other scientists and any objections have been addressed, and that they can cite specific instances of their methods resulting in demonstrably valid or misleading conclusions and explain how these support or undermine their claims (paras. 25.2.1–25.2.2). These are all matters that could appropriately be raised in cross-examination but often are not; they are also similar to the criteria for admissibility recently recommended by the Law Commission. At the time of writing, the Regulator has no statutory powers (although the Government has indicated that it may reconsider the position). The Code of Practice builds upon an ISO (International Standards Organization) standard, no. 17,025. EU Framework Decision 2009/905/JHA requires all member states to accredit DNA laboratories to this standard by November 2013 and fingerprint examiners by November 2015. With the publicly owned Forensic Science Service (FSS) having been closed down in 2012, private contractors bidding for forensic work are expected to be accredited by the UK Accreditation Service under ISO 17025 (House of Commons 2011, para. 97). As yet, there is no such requirement for police in-house forensic services which have taken over some of the work formerly done by the FSS (House of Commons 2011, paras. 101–109).

Other forms of accountability involve disciplinary or legal proceedings against experts who have failed in their duties. These have recently been the subject of two major cases in England. Meadow v General Medical Council concerned an eminent pediatrician who was struck off the medical register following his statistically illiterate evidence in the case of a mother convicted of murdering her two young children. At first instance ([2006] EWHC 146 (Admin)), Mr Justice Collins held that the common law immunity of witnesses from suit in respect of their evidence protected them not only from civil actions for damages but also from disciplinary proceedings by professional bodies. This ruling, based largely on policy considerations about the deterrent effect of possible complaints on the willingness of medical experts to undertake forensic work, was overturned on appeal. The Court of Appeal’s view was consistent with the US authorities on this issue (Sanders 2007, pp. 1564–1565). Again the main ground was one of policy: the need to protect the public against unreliable experts. The majority of the Court, however, considered that Professor Meadow’s misconduct in testifying erroneously on statistical matters outside his expertise had to be set in its “forensic context” ([2006] EWCA Civ 1390, [89], [205]). Defense counsel had failed to challenge the admissibility of this evidence or to expose Professor Meadow’s fallacious reasoning in cross-examination, and the evidence they later called to refute his claims may have been insufficient to counter the “major effect” which the Court of Appeal suspected his vividly worded evidence to have had on the jury (R v. Clark [2003] EWCA Crim 1020, [178]). Since the lawyers carried some of the blame for what had gone wrong, the judges considered that Professor Meadow had not committed serious professional misconduct by straying beyond his expertise. He was therefore reinstated on the medical register.

In Jones v. Kaney [2011] UKSC 13, the Supreme Court decided that expert witnesses should not enjoy immunity from suit for breach of their duty to the party instructing them. The defendant had signed a joint statement by the experts in civil proceedings for personal injuries, which she later admitted did not reflect her true opinion and which undermined her client’s claim for damages. Lords Phillips and Dyson both indicated, however, that civil liability would also extend to testimony by a defense expert in a criminal case (ibid. [60], [125]) – although a civil action by a convicted defendant would be stayed as an abuse of process if the conviction had not been quashed on appeal. As Lord Hope pointed out in his dissenting judgment, this produces the seemingly anomalous result that a prosecution expert continues to enjoy immunity but a defense expert does not. Lord Collins, who concurred with the majority, pointed to a number of US authorities holding that “friendly” experts are not immune to civil actions by their clients. These cases, however, all concern expert evidence in civil litigation. Witnesses in US criminal trials enjoy immunity from suit even if they perjure themselves (Briscoe v LaHue 460 US 325 (1982)).

Conclusion

Jones v Kaney brings us back to the ambiguity of the expert witness’s role in an adversarial system. The defense expert’s duty to the client is, in principle, identical to her duty to the court – a duty to give honest and impartial evidence in accordance with acceptable professional standards. Similarly the prosecution expert, particularly in the case of a private provider in the neoliberal economy of forensic science (Lawless 2011), is under a contractual duty to comply with standards of impartiality and scientific rigor. The idea that duties of impartiality are best enforced through legal accountability to the partisan purchasers of expert services may appear somewhat paradoxical.

On a more optimistic note, it may be that a model of accountability is gradually emerging under which courtroom processes and regulatory systems reinforce one another. If admissibility requirements, the cross-examination of witnesses and the requirements of regulators are all informed by similar criteria of impartiality and reliability; if regulators can keep track of experts’ performance in court; and if lawyers are aware of experts’ compliance or noncompliance with regulatory requirements, we may develop an appropriate set of ethical standards for expert witnesses underpinned by an effective system of accountability for their breach.

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