Tuesday 13th January 2009: The Law Reform Commission’s Consultation Paper on Expert Evidence will be launched by the Hon Ms Justice Fidelma Macken, judge of the Supreme Court, at the Commission’s offices at 6 pm this evening.
The Consultation Paper being published today forms part of the Commission’s Third Programme of Law Reform 2008-2014, and involves an examination of the current rules concerning the admissibility of expert evidence in court and the role and function of expert witnesses. The project also involves an examination of arrangements for ensuring the quality of expert evidence. The Consultation Paper makes 39 provisional recommendations for reform of the law on expert evidence and the role of expert witnesses.
Background: advantages and challenges of expert evidence
The Consultation Paper notes that, in a criminal trial, the ultimate issue of innocence or guilt may turn on a complex technical issue such as DNA evidence, mobile phone tracing evidence, or the interpretation of medical evidence. While the benefits of using, for example, DNA evidence (both in exonerating the innocent and in convicting the guilty) are clear, this is an emerging science which presents a number of challenges. On the one hand, there may be some who completely mistrust scientific evidence. On the other hand, there may be those who take the view that the expert – perhaps especially a crime scene expert referring to DNA evidence – must always be right because they are always right on TV programmes.
The Consultation Paper points out that international studies have noted that courts sometimes hear not the most “expert” opinions but those most favourable to the party paying the experts. These studies have also indicated that questioning by lawyers may lead to the presentation of an inaccurate picture, which will mislead the court and frustrate the expert.
Without sufficient and robust safeguards in place, there is the danger that miscarriages of justice may take place in criminal trials – such as those in the controversial UK case of Sally Clark, who was wrongly convicted of murdering her babies, largely on the (since discredited) expert evidence of Prof Roy Meadow.
Against this background the Commission makes a number of provisional recommendations to try to prevent these problems from arising and to ensure the continued benefits of having reliable expert evidence available to courts.
The main recommendations in the Consultation Paper are that:
- the term “expert” should be defined, and the Commission invites submissions on whether, for example, experience-only based knowledge should be sufficient or whether formal, professional qualifications, study or training is necessary to be considered an expert
- there should be detailed guidelines containing a list of factors which can be used to help the court assess the reliability of expert evidence
- there should be a formal guidance code for expert witnesses (which could be statutory on non-statutory) which would outline the duties owed by expert witnesses
- there should not be a prohibition on experts giving evidence where they have a pre-existing relationship with one of the parties, including where this is as a therapist
- the expert witness should continue to owe a duty to the court which supersedes any duty owed to the instructing party
- there should be a ban on any fee arrangements with expert witnesses which are conditional on the outcome of a case, because these are likely to impede the independence of the experts
- both parties should be required to exchange expert reports prior to any civil claims (note: this currently only applies in personal injuries civil actions; in relation to serious criminal trials, the Government is proposing in its draft Criminal Procedure Bill 2009 that advance notice of the use of experts would be required)
- there should be a set form and structure for expert reports
- jointly appointed experts should be considered, and the Commission invites submissions on whether this would be preferable to making available to parties a panel of experts to choose from or having a single expert imposed by the court
- the relevant professional bodies should be encouraged to introduce their own regulatory and disciplinary processes for professionals who wish to act as expert witnesses
- the traditional immunity for expert witnesses should be considered, and the Commission invites submissions on whether it should be retained.