Paper Presented At Federation of Law Societies National Criminal Law Program Victoria, British Columbia, July, 2009
Author: Mark J. Sandler
Point-Counterpoint: Should Experts Testify As Independent Sources of Information, Not as Witnesses on Behalf of the Party Who Calls Them?
FOR THE AFFIRMATIVE: YES, THEY SHOULD
The recent Inquiry into Pediatric Forensic Pathology in Ontario (“the Inquiry”) was prompted by the serious deficiencies in the work done and opinions rendered by Dr. Charles Smith, a renowned pathologist affiliated both with the Hospital for Sick Children in Toronto and with the Chief Coroner’s Office. Ina number of cases that led to the Inquiry, Dr. Smith was allowed to give expert testimony in pediatric forensic pathology. His expertise almost invariably went unchallenged. Indeed, he presented as a highly accredited expert.As it turned out, he was untrained in forensic pathology and, on his own admission at the Inquiry, was ill prepared to perform the role which he assumed in many criminal investigations and prosecutions.This, despite the fact that shortly before his undoing, he was the head of the Ontario Pediatric Forensic Pathology Unit and, as such, responsible for performing and reporting on the most difficult pediatric forensic pathology cases in the province.
Equally troubling was the content of his opinions. As we now know, there was little or no reliable scientific support for a number of his findings or ultimate conclusions.This was masked by what Justice Goudge described as a “commanding presence” and a dogmatic style of delivery.
It is all too easy to see Dr. Smith’s serious shortcomings as unique. But the Inquiry revealed the systemic vulnerability of the justice system to flawed expert testimony, including but not limited to forensic pathology opinions. There are many identified causes of that vulnerability. These include inadequacies in training or peer review, poorly resourced lawyers and insufficient use by the judiciary of its“gatekeeper” function to identify and weed out unreliable testimony. But here, I choose to focus on how an expert’s lack of independence can infect, and ultimately undermine the role of science to enlighten, rather than mislead, the justice system.
I return to Dr. Charles Smith. In his testimony at the Inquiry, he admitted that, “when he began his work, he did not understand that his duty was to give impartial expert testimony to assist the court, as opposed to serving the adversarial interests of the Crown.”
One might question whether Dr. Smithever understood his duty of impartiality. But what can not reasonably be disputed is that Dr. Smith’s psychological attachment to the Crown’s case also raises systemic concerns. He, like others, regularly testified for the prosecution. He worked closely with police and prosecutors. He felt, on his own admission, aligned with their cause. No doubt, he also regarded himself as an advocate for the deceased child. In the process, objectivity was lost.
The expert as advocate is hardly peculiar to Dr. Smith or to his personal circumstances. Judges and lawyers are all too familiar with the “friendly expert.” Simply put, “friendly experts” are those whose allegiance to the parties who retain them colours and shapes their evaluation of the case. At one end of the spectrum, their opinions are little more than a reflection of what their client expects them to say. As a result, like North Korean dictators, they are highly resistant to change.Or less overtly, they are reluctant, by reason of their retainer, to ever modify their opinions, or acknowledge any qualifications or limitations to them.
To be clear, many experts discharge their responsibilities with objectivity and skill. But the justice system provides little or no support for an objective, uninterested witness. Indeed, thrusting the expert into the adversarial system without such support virtually guarantees that the justice system will continue to suffer from biased experts who, by reason of that bias alone, are unable to provide true assistance to the court.
The Honourable Coulter Osborne, in his recent report on civil justice in Ontario, cited various consultations, working groups or task forces that identified the proliferation of experts and expert bias as major problems in Ontario. He noted:
Consistent with the views of the CBA Task Force on Systems of Civil Justice, the Discovery Task Force and the Advocates’ Society Policy Forum, the vast majority of those consulted in the course of this Review identified the proliferation of experts as a significant problem that often leads to a battle of competing experts. Some observed that as soon as one party retains an expert, an opposing party is forced to retain an expert. The expert witness merry-go-round bears with it an advantage to a litigant who has significant financial resources.
There is also the issue of partiality. A common complaint was that too many experts are no more than hired guns who tailor their reports and evidence to suit the client’s needs. I know that this problem exists, but I hasten to add that not all experts should be tarred with the same brush.
The important, if somewhat obvious, point to be made here is that bias is hardly confined to the expert witness. On the contrary, the testimony of an accused, a complainant, a police officer or a civilian witness is often implicated successfully on the basis of their biases. Police can suffer from “tunnel vision” or “noble cause corruption.” Civilian witnesses can feel “part of the prosecution team” or predisposed to the accused by family or social connections.These biases are easily exposed. But bias in an expert is particularly dangerous. As Justice Sopinka noted inR. v. Morin ,“dressed up in scientific language … and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible as having more weight than it deserves.”With that aura of infallibility also comes the glow of objectivity and independence. Experts often present as “above the fray.” Their numbers, slides, samples do not lie. Their expertise transcends the individual case. As experienced witnesses, they more easily fend off attacks based on purported bias. Those attacks are often simplistic or unimaginative, confined, for example, to“exposing” the fact that the expert is being paid for his/her involvement. Although relevant to bias, this fact is hardly unexpected or standing alone, a badge of bias.
The expert’s bias may be quite subtle, relating to scientific interpretations of highly technical data or interwoven with uncontroversial specialized knowledge, and therefore difficult to tease out. Successful exposure of bias or the unreliability of their findings or opinions may be dependent on specialized knowledge and skill which the cross-examiner does not possess.
The problem has been identified. What is the solution?
The time has come for the justice system to provide new support for experts as sources of independent and objective opinions, rather than as mere witnesses for the parties involved. This does not suggest that trial judges must assume the role of appointing the expert witness, rather than the parties. After all, the court may be no better situated than the parties to identify true expertise. Dr.Charles Smith is, again, the perfect example. Had an Ontario criminal court judge been tasked to appoint his/her own expert in pediatric forensic pathology cases, Dr. Smith would have been the most likely candidate. Moreover, the court should not be “invested” in the credibility or reliability of any expert.Nor is the court’s adjudicative role compatible (absent exceptional circumstances) with “ownership” of the expert witness or the content of his/her opinion. It is not the court appointment of experts that best promotes their independence and objectivity. There are other measures that can be put in place to best ensure that experts are independent, and are not advocates for the party tendering their evidence. Most can be drawn from the recently completed work of the Goudge Inquiry. In this regard, its recommendations apply not only to forensic pathologists, but to forensic experts more generally.
Codes of Conduct
A code of conduct for experts giving evidence in criminal proceedings should be created. This should be in addition to specific Codes of Practice and Performance Standards for forensic experts in certain fields.
In the Civil Justice Reform Project, Mr. Osborne suggested that Ontario’s Rules of Civil Procedure or its Evidence Act be amended “to establish that it is the duty of an expert to assist the court on matters within his or her expertise and that this duty overrides any obligation to the person from whom he or she has received instructions or payment.”
This resonates with the approach taken in England and Wales. There, the Court of Appeal offered up guidelines as to the duties experts owe to the court. They include:
- Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
- An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of advocate.
- An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinions.
These guidelines for all expert witnesses have been included, and added to,in a booklet for experts prepared by the Director of Public Prosecutions. The booklet includes the requirement that experts called by the prosecution certify that they understand their duty to the court and that they will inform all parties and, where appropriate, the court if their views materially change. They also have a self-reporting obligation. They are required to inform the Director of Public Prosecutions of any pending legal, professional, or disciplinary proceedings against them; any adverse findings that have been made against them by a judge or coroner, or anything else that may adversely affect their professional competence or credibility. As noted in the Goudge Report, many of these guidelines also find expression inThe Criminal Procedure [Amendment No 2] Rules 2006.
Similar duties should be imposed on any expert witness in criminal proceedings as a precondition to being permitted to testify. As Justice Goudge conclude , a code of conduct, with ethical duties to reinforce the expert witness’s overriding duty to the court, rather than to the parties, can be introduced into the criminal justice system through practice directions issued by the applicable courts. Those practice directions could require counsel (reinforced by provincial or territorial rules of professional conduct) to ensure that the experts they intend to call are familiar with the code of conduct and agree to be bound by it when giving evidence. Equally important, expert reports should end with a certification that the expert understands his/her overriding duty to the court and the obligation to disclose material changes to the expert’s opinion. As reflected earlier, these certifications are now required in England and Wales.
Of course, the existence of a code of conduct and certifications by experts that they understand their ethical duties provides no guarantee of compliance. Butthey serve several important functions. First, they educate both the expert and counsel who proffer the expert as witness. Second, as one witness noted at the Inquiry,they provide a tool that can be cited by expert witnesses while testifying or being prepared to testify to resist overzealous advocates who urge them to go beyond their expertise, or to express an opinion that may fall within their expertise, but which is unsupportable.Disciplining experts is not the prime focus of these measures. However, a general code of conduct for experts, specific codes of conduct and professional standards in relevant fields, and the certification process described above, can provide the underpinning for disciplinary action in egregious cases of non-compliance.
Exclusion of Biased Evidence
In the ordinary course, bias is a question of weight. Even where it demonstrably exists, it usually has little or no relevance to admissibility. However, expert testimony is admitted as an exception to the ordinary rule against giving opinion evidence. The exception is largely predicated upon the need for the trier of fact to receive expert assistance.The four-part admissibility test articulated inR. v. Mohan  requires that the proffered evidence be, among other things, necessary in assisting the trier of fact, and not otherwise subject to an exclusionary rule. Infused into our exclusionary rules is the requirement that the prejudicial effect of the evidence not exceed its probative value, and that the evidence has threshold reliability. Biased evidence does not assist the trier of fact; will have diminished probative value which may be exceeded by its prejudicial effect, and, by reason of that bias, may not meet the most basic reliability threshold.
I recognize, at once, that bias is more easily addressed at the end of the trial. Moreover, we should not routinely make bias the focus of an admissibility voir dire. However, it should not be overlooked that bias, taken together with other deficiencies in the proffered evidence, can figure prominently in a determination that the evidence should be excluded.  For example, if the witness’s bias prevents him/her from acknowledging the limitations or uncertainties in the underlying science, then the expert’s testimony should not be admitted either because the expert is unable to render a reliable opinion that accurately reflects the state of the science or because, in failing to provide such an opinion, the witness cannot truly be of assistance to the trier of fact. The Goudge Report is a call for the vigilant exercise of the judicial “gatekeeper” function to exclude unreliable expert testimony. I submit that a robust use of that “gatekeeper” function will reinforce the expert witness’ independent role – as someone wedded to the science, not the party tendering his/her evidence.
A Culture Change
Members of the criminal defence bar frequently report that experts they retain are prepared to comment on the opinions rendered by colleagues, but reticent to testify “against” them. These experts accept retainers on the basis that they will not be called as a witness.This poses an obvious dilemma for the defence bar. The case may require the calling of expert testimony. The defence may not have the financial resources to seek out, and consult with, foreign experts who might show less reticence.
The reticence to challenge (however constructively) the opinions of fellow experts is, again, a reminder that experts are frequently uncomfortable in being seen as advocates drawn into the adversarial fray. The challenge is to promote a culture that permits them to maintain their independence and objectivity within an adversarial system. This can be done in several ways. First, protocols or policies should be established across Canada that enable (indeed encourage) government scientists to be retained in some cases for the defence. There are a range of options to address potential conflicts of interest and confidentiality concerns that arise from the use of government scientists by the defence. Experts who some times testify at the request of the Crown, and sometimes at the request of the defence, are less prone to acquire a prosecutorial or defence mind-set.
Second, a spirit of professionalism must be cultivated that welcomes respectful scientific disagreement, and avoids ad hominen attacks directed to legitimately held conflicting views. Counsel have an important role to play in this regard.
Third, experts retained by the Crown, should be fully prepared to meet with defence counsel prior to court to discuss their anticipated evidence and any limitations upon it.Meeting with the defence in advance of trial reinforces the witness’ independence and objectivity, rather than allegiance to the prosecution.The Goudge Report  reflects that many scientists are prepared to do so, but that the responsibility for initiating such meetings rests with the defence.It is noted that some defence counsel are reluctant to “tip their hands” by revealing their position prematurely thereby allowing the expert to “firm up” their evidence to more easily deflect cross-examination.
A similar issue arises when it is suggested that experts retained by the respective parties meet prior to giving evidence. Such meetings may lead experts to reconsider, clarify or narrow their points of disagreement. Indeed, in some jurisdictions, judges are empowered to compel such meetings to take place. Mr. Osborne recommends similar judicial powers in civil cases. However, the point is again made by some defence counsel that such meetings may result in nothing more than the firming up of the evidence relied upon by the Crown.
Justice Goudge was not prepared to recommend that criminal judges be empowered to mandate such meetings.Such a recommendation would raise a host of Charter and related issues. But he was hopeful, in the context of forensic pathology evidence, that with the increased professionalism of forensic pathologists, the proposed new pathology service in Ontario and a renewed emphasis on the forensic pathologists’ duties to the court, as opposed to their duties to the prosecution, defence concerns would be significantly minimized and defence counsel would be more willing both to meet with experts retained by the Crownin advance, and to allow the experts retained by the defence tomeet with their counterparts.The encouragement of such meetings by the criminal justice system in all scientific fields – not just forensic pathology — is likely to further reinforce the independence and objectivity of experts.
The judiciary, Crown and defence counsel have another important role to play in supporting expert independence and objectivity. They should be mindful of the limitations of the science, and not press the experts to express opinions outside of their field of expertise or beyond what the science allows them to reliably say.The court is entitled – indeed obligated — to step in when the questioning at trial invites the expert to do so. Simply put, a healthy respect for the science and its limitations by all concerned, together with a renewed emphasis on the overriding duty of experts to the court, rather than to the parties who call them, can only improve the administration of criminal justice.
 But see: R. v. Inco Ltd.,  O.J. No. 1809 (Sup.Ct.), appeal affirmed on other grounds  O.J. No. 2098, leave to appeal dismissed  S.C.C.A. No. 436; Bank of Montreal v. Citak,  O.J. No. 1096 (Sup. Ct); Fellowes, McNeil v. Kansa General International Insurance Company Ltd. et al. (1998), 40 O.R. (3d) 456, appeal affirmed on other grounds  O.J. No. 3309; R. v. Klassen,  M.J. No. 417 (Man. Q.B.).