Conflicting expert opinion (is it what it seems?)

By Anna Sandiford 23/05/2011

“Having introduced their written evidence with the protestation that they will be independent and unbiased, experts routinely go on to give evidence that is anything but. At least in the eyes of experts regularly giving evidence, the boilerplate declaration of impartiality has as much impact as…..the staple at the top of the page.” And so was a comment by a senior lawyer at a conference I attended in March this year.

So stunned was I by this comment that I sat and took the next 30 minutes of similar comment in the manner regularly referred to as “the stunned mullet”.  I could go on and add more of his views on expert witnesses but why would I?  It is entirely counter to everything that expert witnesses should be and is so diametrically opposite of what I expect of myself and other expert witnesses that I cannot give any more airtime to it.  Although I was shocked and stunned beyond belief that this was the opinion of a current lawyer in New Zealand, I was somewhat heartened by comments of members of the judiciary who were present that this was not their experience at all.  I put it all down to bad experience in the civil justice system and vowed to work harder to disprove this viewpoint.

Counter to the negative put-downs of the March conference, imagine the pleasant surprise of hearing Simon Moore SC, Crown Solicitor, Auckland, speak at the NZ Institute of Chartered Accountants Forensic Accounting Conference last week.  He talked of the requirements of experts to adhere to the High Court Code of Conduct for Expert Witnesses and how expert witnesses should understand their duty being to the Court, not to those instructing them.  He was refreshing in his comments about understanding how difficult it is to give evidence and how it is not the job of the expert to have an opinion on the “ultimate issue” – the central question which it is the responsibility of the particular trier of fact [for example, the judge and/or jury] to determine (Hammond J).

One of the things about which he was very strong was the need for a good working partnership between the expert witness and the lawyer – if the lawyer doesn’t understand what the expert witness is trying to say, the value of the evidence might be lost; counsel for the other side might recognise a weakness that the instructing lawyer didn’t recognise – and capitalise on it.  Time spent familiarising oneself with the expert’s views is always time well spent.

The reason all this sounded so great was because not an hour before I had got up and said pretty much the same thing: the expert witness is there for the benefit of the court, not those instructing them; they are not there to have an opinion on the final outcome of the case; expert witnesses should read, understand and endeavour to adhere to the High Court Code of Conduct for Expert Witnesses at all times, regardless of area of expertise and/or who is paying the bill.

And what made it all so sweet was that it was coming from a senior prosecutor – one of the people who could be cross-examining me at some point in the future.  It’s good to know that he expects forensic scientists to adhere to the same sets of standards that independent forensic scientists expect and, that I hope, all forensic scientists expect.