EXPERT WITNESSES: WHO PLAYS THE SAXAPHONES?
1. Introduction
The use of experts as witnesses in a trial can be traced
back to the 16th century[1],
and criticisms of the use of experts have been made as early as 1622 by Sir
William Coke[2] and 1873 by
Sir George Jessel[3]. Their concerns related generally to the
inadequacy of having “opinions” put before a Court[4].
In the USA, there has been substantial discussion of
appropriate/inappropriate use of expert witnesses in the trial process.
Professor Langbein, in a well-known 1985 article[5],
likened the manipulation of experts by some lawyers to “playing the saxaphone”.
The nature and use of experts within the USA adversarial
system has recently been considered by the US Supreme Court in Daubert v Merrell Dow Pharmaceuticals Inc.[6]
In Australia, the issues surrounding expert evidence have been examined by the
Australian Law Reform Commission as part of a broader inquiry into the
adversarial system.[7]
Further, the Federal Court of Australia has recently
introduced a new Practice Direction as to the paramount duty of the expert to
the Court, the information to be given to and received from the expert, and the
form of the expert’s report.[8]
The Federal Court, however, while adopting certain of the recommendations of
the Woolf report[9], stopped
short of moving to the mooted next step, namely adopting the practice of
court-appointed experts.
In addition, legislative changes have been introduced in
certain Australian jurisdictions to alter the common law rules of admissibility
of expert evidence.[10]
This article seeks to consider the special[11]
quality of expert evidence and to add to the debate in Australia on the
possible introduction of court-appointed experts.
2. The “Special” Nature of Expert Evidence
Expert evidence, if not “special”, is certainly
different.
There are a number of obvious respects in which expert
evidence differs from evidence of fact:
· expert
evidence is evidence of “opinion” rather than “fact”
· expert
evidence is affected by tests of admissibility (for example, the “general
acceptance” test, the “ultimate issue” test,....) which do not apply to
evidence of fact
· the
expert’s opinion is probative because of the expert’s particular background,
much of which background is never put before the Court
The entire notion of a Court being persuaded by expert
opinion has certain troubling aspects.
There is a view that “science is overwhelming”[12],
the mere fact that evidence is provided by an “expert” may potentially persuade
a Court as to its correctness beyond the merit of the particular evidence.
There have been notorious failures in the Court process, generally in criminal
trials rather than civil trials, where Courts, or juries, have accepted
evidence from experts which subsequent examination has shown to be inadequately
founded.[13]
The analysis of science
is itself complex. The Courts are exposed to questions of “junk science”[14],
“extraordinary” versus “normal” science, the dichotomy between the expert’s
methodology and his/her conclusions[15]
and the different potential treatment of scientific and non-scientific expert
evidence.[16]
The concept of an “expert” is affected by generally held beliefs as to the
skill, and the neutral qualities of such a person.[17]
Yet everywhere, that neutrality is doubted[18],
and the expert’s skill questioned.[19]
The nature of expert evidence, therefore, is such that,
in the process of the adversarial trial system, the Court, in determining
whether to allow such evidence to be placed before it, must have regard to these complexities.
3. The Evolving Rules of Evidence in
Australia
The rules of
evidence in Australia are evolving.
A discussion of the Australian common law rules of
evidence usually includes the often cited extract from Clark v Ryan:
“....opinion of witnesses possessing peculiar
skill is admissible whenever the subject matter of inquiry is such that
inexperienced persons are unlikely to prove capable of forming a correct
judgment upon it without such assistance, in other words, when it so far
partakes of the nature of science as to require a course of previous habit, or
study, in order to obtain knowledge of it.”[20]
Odgers and Richardson[21]
address the recent development of the rules of evidence in Australia in
relation to expert opinion, in particular the introduction of the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW), incorporating
legislation similar in context to the United States Federal Rules of Evidence
upon which Daubert was decided.
Odgers and Richardson note the traditional rules of
evidence in Australia as follows:
· it
must derive from a “field of expertise”
· the
witness must be an expert in the field
· the
opinion must be relevant to a fact in issue
· the
opinion must not be in respect of a matter of “common knowledge”
· the
opinion must not be in respect of an ultimate issue
· the
expert must disclose the facts (usually assumed) upon which the opinion is
based
· the
facts upon which the opinion is based must be capable of proof by admissible
evidence
· evidence
must be admitted to prove the assumed facts upon which the opinion is based
· in
criminal cases, the evidence must be more probative then prejudicial[22]
These common law rules, however, are being progressively
changed by legislation and the Rules of Court.
Federal Court Practice Direction
The Federal Court has recently adopted a new
Practice Direction in respect of expert witnesses, adopting the Woolf report
recommendation that the expert’s paramount duty be to the Court, and adopting
virtually verbatim the duties and responsibilities as to the form of the
expert’s report as articulated in The
Ikarian Reefer.[23]. The key requirements of the new
Federal Court Practice Direction are as follows:
· The
expert’s paramount duty is to assist the Court, not the party retaining the
expert.
· The
expert’s report must detail the expert’s qualifications, the literature or
other material used in making the report, assumptions made by the expert, tests
or experiments upon which the expert relied, and a summary of the opinions
provided in the report and reasons for each opinion.
· The
expert is required to make a declaration that the expert has made all inquiries
which the expert believes desirable and appropriate and that no matters of
significance which the expert regards as relevant have been withheld from the
Court.
· The
expert’s report must detail all instructions given to the expert, the facts,
matters and assumptions upon which the report proceeds, and the documents and
other materials which the expert has been instructed to consider.
· The
expert must detail any change of opinion, any area which is not fully
researched or is otherwise incomplete or inaccurate, or any question falling
outside his expertise.
· Any
reports, photographs, or other documents referred to by the expert must be
provided to the opposite party at the time of exchanging reports.
The form of the Practice Direction is interesting in that
it cites authority for the directions, including the Woolf Report[24]
and an address by Lord Woolf to a group of medical practitioners on, inter
alia, the use of medical experts in medical litigation.[25]
Lord Woolf observed, in that address, that medical experts acting for the
respective parties had developed a deep distrust of each other. Further, he
observed, it was generally difficult for plaintiffs, at any time, to encourage
medical experts to appear on their behalf (in deference to other members of
their profession). Accordingly, some experts had tended to become regular
witnesses for medical plaintiffs which, in turn, tended to diminish their
medical practice in favour of the medico/legal practice, thereby entrenching
their financial dependence on such work and encouraging such experts to deliver
to their plaintiff clients those reports which were required[26].
The changes mooted in the Woolf report[27]
in relation to expert witnesses were, as Lord Woolf pointed out, substantially
consistent with similar developments, albeit introduced into varying
jurisdictions at varying times, to varying degrees, throughout the USA, Canada
and Australia.[28]
In addition, recent changes to the Evidence Act 1995 (Cth) and the Evidence
Act 1995 (NSW) have substantially altered the previous common law position
by removing the “common knowledge” and the “ultimate issue” admissibility
tests.[29]
One of Australia’s most senior international commercial
arbitrators and expert witness, Mr A A de Fina, in commenting on the Federal
Court Practice Direction and other developments in the rules of evidence
affecting experts in Australia, notes that the Courts are now “rigorous” in
preventing experts giving evidence outside their area of expertise and that the
Courts, while expanding the areas in which expert evidence might be admitted,
are involved in “greater scrutiny and testing of an expert’s qualifications”.[30]
Mr de Fina, referring to provisions in the Rules of Court in several Australian
states, similar provisions in the UK and in Germany, and other directions,
concludes:
“These procedures have proved
cost effective, reducing time taken and reducing expert evidence dramatically
and arriving at appropriate conclusions in a transparent manner without
prejudicing the rights of parties…..Major cases involving the use of these
processes have subsequently been the subject of curial review without
attracting adverse criticism.”[31]
4. The American Analysis of the Nature of
Expert Evidence
The admissibility of expert evidence in the USA Federal
Courts has recently been examined by the US Supreme Court in Daubert v Merrell Dow Chemical, Inc.[32],
and refined in General Electric Co v
Joiner[33].
In Daubert, a
number of plaintiffs were suing Merrell Dow in relation to birth defects from
the drug Bendectin. They had attempted
to introduce expert evidence by way of an unpublished study alleging causal
relationship between use of the drug and limb reduction defects which did not
embody new research but merely recalculated results from other studies.
The Ninth Circuit Federal Court had concluded that the
evidence did not meet the “general acceptance” test which had come down from
the 1923 Supreme Court case of Frye v
United States.[34] In Frye,
the US Supreme Court had concluded that expert evidence, to be admissible in a
Court, had to be from a recognised field of expertise which field had gained
“general acceptance”. In brief, Frye stood
for the following propositions:
· the
expertise had to cover a generally accepted field
· the
question of whether the expertise fell within such a generally accepted field
was ultimately one to be decided on evidence from experts (in effect, the Frye Court had moved the responsibility
for deciding whether or not to accept particular expert evidence from the
Courts to the experts themselves)
Faigman[35]
et al trace the history of the Frye test.
The expert evidence sought to be admitted related to an early lie detector test
based on blood pressure. Faigman et al note that the Frye test was unremarkable at the time it was handed down (the
decision ran to only approximately 5,000 words, it was generally not cited in
other cases for the first 10 years after it was handed down, and it is only in
recent years that the case has come to be regarded as the key test in respect
of admissibility of expert evidence). The critical passage in Frye is:-
“….. just when a scientific
principle or discovery crosses the line between the experimental and
demonstrable stages is difficult to define…..the thing from which the deduction
is made must be sufficiently established to have gained general acceptance in the particular field in which it
belongs…“(emphasis added)
In Daubert, the
Supreme Court examined the effect of the modern Federal Court Rules of Evidence
Rule 702, and overturned the Ninth Circuit decision, based on Frye.
Rule 702 provides as follows:
…If
scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise…
The Supreme Court concluded that the test to be derived
from Rule 702 was “scientific validity”.
Faigman et al note that,
though some writers have expressed the view that Daubert embraces the “general acceptance” test of Frye, the majority in fact abandoned the
Frye test. In brief, Daubert stands for the following:
· “scientific
validity” is the test to be applied
· in
assessing whether a field is scientifically valid, Rule 702 requires the Court
to examine the studies, background methods, observations, previous work and
other matters going to the field of study
· the
test is to be applied to the particular experts methods, observations,
qualifications and other background matters, but not to the particular
conclusions drawn by the expert as a result of that background[36]
Faigman et al conclude that, following Daubert, the Courts no longer leave the
decision as to whether a field is “scientifically valid” to the experts, but
now make that a question for the Courts. Kenneth Chesebro was lead counsel for
the plaintiff in Daubert. He concludes[37]
that, following Daubert, the test for
admissibility is scientific validity, and thus evidentiary relevance and
reliability.[38] Jansonius
and Gould[39] express the
concern that Daubert raises complex
questions as to how far the Daubert
reasoning is to be taken.
Roisman[40]
has examined the Daubert decision in
relation to what he describes as a “philosophical examination” into the proper
role of science in court room litigation.
In particular, he follows developments in epidemiological studies
tracing the Agent Orange litigation[41]
in which the Court ruled that without epidemiological studies, it was not
possible to make a causal connection between the herbicide Agent Orange and
claimed adverse health effects. This, says Roisman, in the context of
epidemiological data being “virtually unheard of” in the Courts prior to the
Agent Orange decision.
Roisman noted the Fifth Circuit Court decision in Brock v. Merrell Dow Pharmaceutical, Inc.[42]
where, again, the Court concluded that it could offer no opinion on a causal
connection between the drug Bendectin and limb reduction birth defects. This, however, Roisman notes, conflicts with
De Luca v Merrell Dow Pharmaceitcals, Inc[43]
in which the Court concluded that no single piece of evidence was dispositive
of the issue of medical causation and that it was appropriate for experts to
rely upon all types of scientific evidence, including non-statistically
significant epidemiological evidence.
This was ultimately quoted from an amici brief of
petitioners , scientists and historians of scientists in support of petitioners
in the Daubert case to the effect
that there is no “knowable, objective scientific truth”:
“…..Judgments based on
scientific evidence, whether made in a laboratory or a Court room, are
undermined by a categorical refusal even to consider research or views that
contradicts someone’s notion of the prevailing ‘consensus’ of scientific
opinion. Science progresses as much or
more by the replacement of old views as by the gradual accumulation of
incremental knowledge. Automatically
rejecting dissenting views that challenge the conventional wisdom is a
dangerous fallacy, for almost every generally accepted view was once deemed
eccentric or heretical. Perpetuating
the reign of a supposed scientific orthodoxy in this way, whether in a research
laboratory or in a courtroom, is profoundly inimical to the search for
truth. A categorical refusal even to
examine and consider scientific evidence that conflicts with some ill-defined
notion of majority opinion is a recipe for error in any forum….”.[44]
The relationship between science and law was further
examined by Professor Dreyfuss[45]
who concludes that while Daubert is
perceived as a “quintessential policy case”, the decision has, “in fact, proved
to be less than it seems”.[46]
Dreyfuss notes that though the Supreme Court was dealing with a special rule
for handling scientific evidence, the Court never explained why science
required special treatment at all. Dreyfuss concludes that the notion that the
law should defer to science because science is somehow more likely to be lead
to the truth should be rejected, but rather the Courts should read Daubert as stressing their gatekeeping
and managerial functions with regard to all expert testimony. Dreyfuss points
out that “falsifiability” is not a term used by many scientific disciplines
noting also that Chief Justice Rehnquist was “at a loss to know what is meant
when it is said that the scientific status for theory depends on its
‘falsifiability’”.[47]
Dreyfuss examines the argument that science in the
courtroom is a problem because of the role juries play in the substantive
determination[48], in
particular the concern that jurors may find for the most or most presentable
experts and concludes:
“…..to prevent junk science from
distorting outcomes, the Judge must act as a rigorous gate keeper, sifting out evidence that the jury cannot be
trusted to evaluate properly….”[49]
(emphasis added)
Dreyfuss concludes that the current rules in relation to
the admissibility of evidence are, in fact, sufficient to assist the Courts to
perform that gate keeper role, and to examine the key issue, namely whether the
Court considers that the fact finder has enough information at its disposal to
decide the issues. Dreyfuss proposes, for example, that at the pre-trial
conference the Court determine:
1.
the “fit” between the science of the parties seeking to
present legal issues in the case;
2.
the witness list (including, in those jurisdictions
permitting court-appointed experts, whether such an expert should be
appointed);
3.
the structure of the trial which would best facilitate
jury consideration of the science issues.[50]
Professor Jonakiat[51]
considers Daubert in the context of
forensic science, and concludes that “Daubert’s
effect on forensic science is unclear because the opinion is unclear”. Jonakiat,
while concluding that the decision is generally unhelpful for trial courts in
providing “meaningful guidance” on how to follow the path (in determining
whether to admit scientific evidence) describes as “enlightening in its
discussion” the Supreme Court’s discussion of peer review and publication. He
concludes:
“Peer review and publication,
then, are not important in themselves, but in what they reveal about the
likelihood of methodological flaws having been protected and, presumably,
corrected,. Consequentially, even if
the science has been peer reviewed and published, if these processes were
unlikely to be to discovery and correction of problems, the reliability of the science is suspect. Conversely, if the trial Court becomes
convenience that such detection and alteration have occurred even without the
scientific communities scrutineer, the testimony still could be admitted.”[52]
Jonakiat goes on to discuss “testability” and
“falsifiability”:
“Daubert treats falsifiability or testability
as a factor similar to the others in this flexible inquiry. The Court was wrong. The defining touchstone
of science is a testable proposition that is tested. To be a scientist requires finding ways to test hypotheses that
are generated; otherwise the ‘science’ is just an exercise in fantasy.”[53]
Jonakiat concludes that Daubert fails by suggesting that testability and falsifiability is
not an absolute. He concludes that the
Court should have made clear that an asssertion is science if and only if it
can be tested or falsified. Jonakiat concludes, ultimately, that little or no
meaningful testing has ever been produced on many forensic science procedures
and that, in fact, the few disclosed error rates as to forensic science
techniques are “shockingly high”.[54] He concludes that, if Daubert is taken seriously, much of forensic science is in serious
trouble.[55]
Farrell[56]
explores the inconsistent epistemological premises upon which the Court
proceeded in Daubert. Farrell notes that the Daubert decision was claimed by both parties as a victory: Daubert is “somewhere between the Frye test of the restrictive ‘general
acceptance’ standard for limiting the admission of scientific evidence, and
those who would ‘let it all come in’”.[57]
Farrell concludes with the comment that judges who do not
enlist scientific experts in evaluating the validity of scientific
methodologies will risk inconsistent determinations about scientific validity
which will need to be reconciled by appeal courts. Yet judges who do seek assistance from such experts, necessarily
abdicate some of their decision making authority and thereby undermine
confidence in adjudication by neutral, tenured judges[58]
So what does Daubert
do for Australia? Does this mean anything for Australia?
At the least, the reasoning is instructive.
5. Junk Science, Non-Scientific Expert
Evidence, and Forensic Evidence
Why not allow all evidence asserted to be “expert
evidence” in ?.
The fundamental reasoning for treating expert evidence as
“special”, to the point of permitting evidence of “opinion”, dates back to the
earliest use of expert evidence, where Courts concluded that certain areas of
knowledge were beyond the capacity of Courts and/or juries and, therefore, it
was appropriate to have expert evidence, albeit opinion evidence, put before
the Court. This has been characterised
well as adding to the resources of the Court.[59]
The modern concern, however, is that the Courts are being
flooded with “junk science”, science which has a questionable basis. The term “junk science” is usually
attributed to Peter Huber in his often cited (and often criticised) thesis that
the relaxation of admissibility standards for expert testimony has resulted in
the inundation of courtroom testimony based on junk science, in his text Galileo’s Revenge: Junk Science in the
Courtroom.[60]
Professor Imwinkelried describes as the “backdrop of the Daubert decision …. the raging
controversy over the question whether American Courts were being inundated by
junk science.”[61] Imwinkelried
describes as a matter of common knowledge: “…that scientific expert testimony
is offered in a very high percentage of American trials”.[62]
Imwinkelried goes beyond Peter Huber’s thesis (that the
relaxation of admissibility standards for expert testimony has resulted in the
inundation of courtroom testimony based on junk science)[63],
and cites Dean Wigmore to the effect that the introduction of expert testimony
“has done more than anyone…..to reduce our litigation to the state of legalised
gambling”[64]
Imwinkelried examines the relationship between the common
law rule against opinion evidence and John Locke’s 17th century
philosophy, in particular his Essay
concerning Human Understanding. Imwinkelried suggests that the common law
courts:
“…. embraced Locke’s premise
that experience is the best and most ‘solid basis for human knowledge’”[65]
Imwinkelried notes that Locke was developing his
“epistemological” theory at roughly the same time as the new scientific
movement was making its advent, pointing out that Locke was a contemporary of
Isaac Newton, and that Newton used experimental method to derive his laws of
mechanics, ultimately reliance on that methodology being referred to from time
to time as “Newtonian science”.[66] Imwinkelried, in relating Lockean epistemology
and Newtonian science in the context of the Supreme Court decision in Daubert, concludes that Justice
Blackmun:
“…posed the epistemological
question; how does a scientist come
to know that a proposition is true? He
looked to the methodology of Newtonian experimental science to answer the
question; the process of developing and testing hypotheses explains how a
scientist does so”. [67]
Imwinkelried notes that the factors proposed by the Court
were the very factors that an empirical scientist normally addresses in
deciding whether a proposition has been experimentally verified, namely whether
the hypothesis is testable, whether it has been tested and whether there is a
known error rate.[68]
Non-scientific
Evidence
Imwinkelried addresses what he describes as the challenge
of formulating validation standards for non-scientific expert evidence.[69]
He notes that the complaints about the reliability of non-scientific expert
testimony have been less common than about junk science yet the trustworthiness
of non-scientific expert testimony is “every bit as suspect as the reliability
of scientific evidence”. He concludes[70]
that there has been a substantive lack of judicial response as to the
reliability of non-scientific expert testimony, even though Rule 702 refers to
both “scientific knowledge” and “technical, or otherwise specialised
knowledge”. He refers to the failure
(to develop objective reliability standards in relation to non-scientific
expert evidence) as “intolerable”.[71]
Imwinkelried ultimately proposes qualitative restrictions
(where the expert cannot cite any personal experiences to support an opinion)
and qualitative restrictions (where the expert is citing experiences which are
qualitatively different from the issues before the Court), and concludes that
the Daubert Court, while dealing with
the junk science controversy, has yet to assist in relation to non-scientific
expert evidence.
Koukoutchos[72]
was counsel in the Daubert case for what
he described as an“eclectic group of petitioners, scientists, historian of
science and sociologists of science” who submitted a brief in the US Supreme
Court hearing as amici curiae.[73]
Koukoutchos introduces his article with the statement:
“The truth of the proposition
that an understanding of science is far removed from judicial expertise is
manifest from the lower Courts’ opinions in Daubert
and, to much a lesser extent, from the majority opinion of the Supreme Court as
well. The case furnishes a useful lens for examining what happens when Solomon
meets Galileo and isn’t quite sure what to do with him.”[74]
Koukoutchos expresses substantial disagreement with the
notion of consensus in relation to general acceptance for the purpose of “good
science”, concluding:
“…the extent of consensus is not
a criteria of merit or ‘good science’ for a particular piece of research or
analysis. It provides a basis only for
judging whether the field in which the work occurs is a science, not for
judging whether the work itself is valid.”[75]
Koukoutchos makes the good point that cases in which
scientific opinion is unanimous do not often get to trial, and that scientists
are no different from others in that “the very best people can be mistaken and
often are”. Ultimately Koukoutchos
suggests that the question of whether a litigant’s scientific witnesses are
right or wrong is a merits question for the jury, not an admissibility question
for the judge. He refers to Columbus (“scorned as a renegade geographer”) and
Galileo (“persecuted by the Inquisition for challenging the geocentric
orthodoxy…”)[76].
He concludes:
“…in scientific inquiry…a
rejection should take the form of a deliberative determination on the merits
that the rejected view is incorrect, rather than a threshold assumption that
the view is per se unworthy of consideration simply because it does not concur
with someone’s idea of the majority
position…”[77]
Koukoutchos makes the comment that peer review is a
“lousy litmus test”, offering examples of peer-reviewed public studies
subsequently proving to have glaring flaws[78]
and, conversely, worthy studies which failed to achieve publication[79].
Odgers and Richardson[80]
refer to a number of miscarriages of justice in Australia, in particular the Azaria Chamberlain trial, and to the
findings of Royal Commissioner, Morling J, who concluded ultimately that it was
the expert evidence at trial which caused the miscarriage of justice [81].
Odgers and Richardson discuss “falsifiability” and note
examples where proper testing was not done or was ignored.[82] The authors consider the developing areas of
law, particularly in relation to “new syndromes” promoted in the courts in the
past decades - battered child syndrome, child sex abuse syndrome, battered
woman syndrome and rape trauma syndrome[83]
and conclude that the implications of Daubert
may be immense in respect of the “burgeoning area of syndrome
development”. Ultimately Odgers and
Richardson conclude that the Australian courts are already engaged to some
extent in the task of distinguishing “good” from “junk” science. The critical
difficulty in relation to “junk science” is the nature of scientific
evidence. By definition, new science
tends to be regarded, at least initially, as not valid or, at best, yet to be
established.[84]
Peer review, from time to time, has proved even more
unreliable than this.
In 1996, Alan Sokal published the seemingly learned
article, Transgressing the boundaries:
Towards a transformative hernemuetics of quantum gravity, in the American
Culture Studies Journal Social Text.
In fact, the article was a hoax.[85]. Sokal’s aim seems to have been to poke fun
at certain learned authors. The acceptance of his article highlighted the
potential inadequacy of peer review as a basis for discerning “good” and “bad”
science in admissibility questions determined by a court.
Forensic
Evidence
Edmond[86] examines, in detail, the
background to the Azaria Chamberlain
trial and the scientific evidence leading to the ultimate conviction at the
trial. He concludes:
“The eventual
recriminations following shifts and the interpretation of evidence are
partially a consequence of the inability to transcend the invocation of
mythical images of science”.[87]
In a section entitled “Beyond Good and Evil Science” he
surmises:
“This article
attempts to provide a means of explaining why the various parties, including
experts, can be so enthusiastically committed to arrange for apparently
inconsistent knowledge, claims and narratives without the need to prescribe the
participants as partisan experts ‘hired guns’ and Charlatans. Such polemnical labels fail to reflect that
scientists whose claims are not accepted, or even admonished by a fact-finder,
seem genuinely committed to their evidence.”[88]
Edmond concludes:
“The suggestion
that there is some kind of prestige Science
existing outside of legal settings which is contaminated by its involvement in
courts misrepresents the complex interdependent relationship between the legal
system and the scientists. Law and the
scientists have, and will continue to have, a central litigating (role in
modern society)”.[89]
Bourke[90]
also examines the Azaria Chamberlain
case in detail, together with the Birmingham
Six case in the United Kingdom, the Thomas
case in New Zealand, and the Castro case
in the USA, and several further instances of cases in which the forensic
evidence was flawed[91].
The author concludes:
“The state of the current law is
perpetuating the misuse of scientific evidence in criminal trials. It also exposes the tendency in Australia to
adopt the American approach of distinguishing novel scientific techniques from
older, more accepted ones, without giving proper attention to the real issue of
reliability”.[92]
Bourke suggests a number of solutions including:
· education
of lawyers (as to the problem of unreliable scientific evidence)
· scientific
reforms (in particular, reforms to scientific standards relating to national
standardisation of test procedures, national databases, proficiency testing of
experts, independent forensic science institutes…)
· reforms
to rules of evidence (in particular, treating scientific as any other
inherently unreliable evidence, case by case recognition of a prejudicial
effect of scientific test evidence being outweighed by the probity effect,
pre-trial exposures and pre-trial conferences on the scientific evidence)
Bourke concludes:
“….. scientific evidence where
the test is a novel kind or an old established one...the effect is that
scientific evidence is not critically evaluated to assess its scientific
accuracy nor to determine its eventual weight.”[93]
Freckelton[94]
examines the effect of scientific evidence on juries and concludes that the
courts have, on occasions, invested juries with “profound symbolic
significance” and at other times “sought to protect them because of what has
been perceived as their fragility”.[95]
The author cites Dawson J[96]
to the effect that the courts are moving towards a less exclusionary view of
expert evidence and concludes that greater numbers of expert witnesses are
being permitted to testify on a broader base of subject matter than
before. Freckelton rationalises this
with the notion that juries are “less vulnerable than was previously believed”[97].
Freckelton notes that little research has been devoted
exclusively to jurors’ ability to understand the expert evidence in trials. He
refers to two US studies[98]
which conclude that available and empirical information as to difficulties on
jurors in understanding expert evidence is extremely limited.
Freckelton notes comments from the bench as to the
partisan attitudes of some expert witnesses[99]
and other occasions where actual bias and deception have been uncovered. In the
IRA bombing investigation, the Court noted that:
“Forensic scientists may become
partisan. The very fact that the police
seek their assistance may create a relationship between the police and the
forensic scientists. And the
adversarial character of proceedings tends to promote this process….”.[100].
Freckelton discerns[101]
a tendency in recent years for increasing stringency by courts in insisting
that material before them should be of a kind which they can adequately
evaluate. He notes the relaxation in
the common knowledge rule, and the (since implemented) recommendations of the
Australian Law Reform Commission, in the Commonwealth and New South Wales Evidence Acts.[102]
Freckelton expresses the view that the ultimate issue
rule is being relaxed to the extent that certain experts are being regularly
permitted to testify on the ultimate issues, particularly, for example,
psychiatrists and phycologists testifying about issues of diminished
responsibilities, incentive and competence.[103]
He also notes the example of aborigine native title claims and expert witnesses
expressing opinions on rights of particular clans to particular land.
Freckelton notes that the Law Reform Commissions of Australia, Ontario,
Scotland, and South Australia, respectively and the Federal/Providential Task
Force of Canada, have all recommended the abolition of the ultimate evidence
rule.[104]
Freckelton concludes:
”The evolution in the
exclusionary rules of expert evidence that has been identified rests upon what
appears to be a new found Australian judicial confidence in the ability of
jurors to assimilate and adequately digest expert and other evidence with the
assistance of directions from judges”[105]
He goes on to warn, however:
“The results of well-conducted
studies by psychologists suggest that jurors will experience real difficulties
in evaluating some forms of complex expert evidence. Sadly little of the information that is available from extensive
research involving both real and simulated jurors has yet been utilised by the
courts”.[106]
6. Court-Appointed
Experts?
Should court-appointed experts be introduced into civil
litigation in Australia? This remains an unanswered question. Modern
commentators have gone both ways.
Most commentators echo the concerns for coaching of
witnesses, selective evidence being lead by the parties, and the opportunity
for better funded litigants, who may be able to afford better expert evidence,
to be unfairly advantaged.
A recent Federal Court of Australia Practice Direction[107]
has addressed certain of those issues, without going to the next step in
introducing the appointment of experts by the Court.
The Federal Court, in issuing its Practice Direction,
stopped short of a further mooted reform, the introduction of court-appointed
experts.
The perceived problems in the use of expert witnesses
within the adversarial system were debated in the mid-1980’s in a series of
articles producing argument and counter argument pertaining to the so-called German Advantage.[108]
Professor Langbein likened an expert witness to a saxaphone, being played by
the lawyers.
In his 1985 article, Langbein outlined a number of what he deemed “advantages”
of the German system of civil litigation over the USA system, principally in
relation to the court-driven selection, engagement, and conduct of the expert
evidence. He criticised certain practices in the conduct of adversarial
litigation in the USA, in particular:
·
coaching of witnesses by the lawyers
·
selective evidence being drawn from expert witnesses to
suit the party’s case