Effectiveness of a Screening Panel for Expert Evidence in Criminal Trials - Essay Example

?Harris Kamran Law Consultation Paper 7 July The Effectiveness Of a Screening Panel For Expert Evidence In Criminal Trials Criminal trials have been, of late, increasingly relying upon the presentation of expert evidence for decision making, especially in cases that involve complex technical, scientific or professional concepts or understanding1. This trend has become all the more poignant due to the advancement in scientific investigative and analysis techniques2. Courts, and the public in general, view the expert evidence as more authentic and reliable than the conventional evidence like documents, witnesses, statements, behaviour in court, and other forms that might be submitted by the opposing parties3. This means that such evidence carries a considerable weight in jury decisions, especially if it goes in accordance with circumstantial evidence4. Indeed, the “aura of infallibility”5 regarding the scientific evidence is sometimes enough to polarise the court and sway it heavily in favour of one party6. Whereas the inclusion of expert evidence in criminal trials has proven to be very helpful in jury decisions, especially when it is as straightforward as DNA results7, there have been many disturbing miscarriages of justice in regard to either too much or very unreliable expert evidence, which has led to a growing skepticism8 among the legal bodies about the involvement of such information. This paper relays some of those problems and their causes, and proposes a solution in the form of a screening panel for the analysis of such evidence as a solution to these problems. Expert evidence, owing to its nature, is complex and technical, and is often beyond the intellectual capacity and understanding of the legal body, including the judge, jurors, and lawyers, because they have not been trained for such disciplines. This leads to the basic controversy that the judge and the jurors tend to side with the expert readily, given the “aura of infallibility”(No 5)9, as stated before. This trend alone can lead to grave miscarriages of justice, as it stems from two further issues. Firstly, it is not necessary that the expert opinion is based on reliable and authentic sources, and that the methodology of data collection and analysis is standardised and authentic. Often the scientific techniques for gathering evidence do not reach up to the mark10, or are not fully developed or researched in that region. This means that the legal body would be basing their decisions on unreliable and flawed information_ an inexcusable error in the legal discourse11. Secondly, the objectivity of the expert can be questionable. By law, the expert is expected to be an “independent” witness12, that is, unbiased and basing his statements only on the factual evidence. However, this might not be the case. The expert witness is, more often that not, also the expert adviser to one of the parties13, and as an adviser, by law, he is expected to abide by non-disclosure and loyalty to his party, aiming, at no time during the legal proceedings, to harm the image or motives of his party14. The same adviser, when presenting as a witness in court and submitting expert evidence, is expected, by law, to be impartial and adhere to complete disclosure of all the information on which he is basing his opinions, such that those facts should be the same on which the judge or the jurors would base their decisions15. As can be clearly seen, these two roles of the expert witness contradict each other and are paradoxical in nature, leading to many wrongful decisions by the court16, or at the least, eliciting a lot of controversies. Expert witnesses cost money, and the employment of multiple expert witnesses by the different parties means the legal proceedings become quite an expensive affair17. This problem exacerbates when the parties involved have different economic standings, leading to a disparity between the parties in relation to the accessibility of resources. This means that those who can afford it will be able to call more expert witnesses in their favour18, the witnesses also being their advisers, which could heavily influence the decision making process of the court, especially if that pertinent legal body places a lot of emphasis on expert evidence. This can hold true when multi-national companies and big corporations are involved19. Some legal officials can be of the opinion that the statements of the experts are merely opinions rather than evidence20, and should be treated as such. This idea is not completely ill-formed. The scientific technology and methodology is ever-improving, and newer and better techniques are developed which may render the previous methods as obsolete or incorrect. In this regard, the scientific information which is viewed as fact at any given time might actually be considered to be merely hypothesis21; basing legal decisions on hypothesis and opinions, thus, seems inappropriate. An interesting case to be considered here that demonstrates how expert opinion can influence court decision is that of the involvement of Sir Roy Meadow in no less than four cases34, in all of which his testimony led to the court decision that the defendants had murdered their children, and so were sentenced to imprisonment35. The cases include those of Sally Clark who served three years36, Angela Cannings who served eighteen months37, Donna Anthony who served six years38, and Trupti Patel39. During the Sally Clark case, Sir Roy maintained that the odds of two consecutive natural infant deaths in the same family were 73 million to one40. This statistical evidence was later refuted by the Royal Statistical Society that stated that given all the factors such as genetic and environmental, the probability came to be 200 to one41. Based on such misleading evidence, the GMC removed Sir Roy from the Medical Council on 15 July, 200542. Indeed, the evidence of Sir Roy was described by the Judges as ‘“manifestly wrong” and “grossly misleading”’43. Another issue lies with the inability of the lawyers to cross-examine an expert presented by an opposing party22. This is due to the lack of technical knowledge and expertise of the lawyers in that particular field23. This means that the expert evidence mostly goes unquestioned, placing a lot of trust on the judgment and opinions of experts the character and technical background of whom is often not explored in court24. In light of all the issues that have been discussed, it is evident that there is a dire need to reform the legal approach to expert evidence to avoid miscarriage of justice. One of the most effective ways of achieving this is the establishment of a screening panel for expert evidence, especially in criminal trials, to rule out unnecessary and unreliable information. This panel can be in collaboration of the concerned legal and scientific bodies, both of which need to be trained in basic courses of the other’s discipline25 to better handle the evidence at hand. The screening panel should devise certain screening tests27 for the expert selection process, testing not only for the reliability and authenticity of the data collection and analysis techniques, but also for the reliability and integrity of the experts themselves. A certain educational merit, although not absolutely required28, cannot be ignored. This panel should have complete discretion as regards the selection of the experts from the available pool, based on the relevance to the case at hand. Not only will it be allowed to determine the number31 of experts allowed per case per party, but also determine which experts to be allowed to speak in which area of the case. The screening could begin by laying out basic prerequisites for the process, such as a certain level of education32, years of experience, recommendations and testimonials from the workplace and colleagues that would serve as proof of the honesty and integrity33 of the expert, and whether the expert has testified previously in court or not, and if so, then records of the previous evidence submitted by the expert and its outcome. To this end, there should also be a screening of the jurors based on the way they handle expert opinion26 and the weight they place on such evidence; ruling in favour of one party simply on the basis of scientific evidence is not acceptable anymore. Along with this approach, the court should define a clear distinction between the duties and responsibilities29 of an expert adviser and an expert witness, and should strive to appoint only one expert per case, so that the expert can act impartially to the parties and can be cross-examined by both parties, thereby reducing the chance of bias and the issue of expense30. Such a conjoined response to the problem of expert evidence in criminal trials can be hoped to be effective in reducing the occurrence of miscarriage of justice due to the overwhelming influence and use of scientific evidence in legal rulings. Bibliography ‘Expert Evidence’ (n.d.) Review of The Civil and Criminal Justice System accessed 7 July 2011 (FN 12-19,22-33) ‘Expert Evidence In Criminal Proceedings’ (Law Commission, 22 March 2011) < http://www.justice.gov.uk/lawcommission/expert-evidence-in-criminal-trials.htm> accessed 7 July 2011 (FN 4, Francis Gibb, “Why the Law Commission is worried about the expert evidence” (7 April 2009) The Times accessed 7 July 2011 (FN 8,11 ‘Life of Crime’ (BBC News, January 2001) accessed 7 July 2011 Mathew Taylor, ‘Appeal Court Clears Mother of Killing Her Two Babies’ (Angela Cannings, 2005) < http://www.innocent.org.uk/cases/angelacannings/index.html> accessed 14 July 2011 (FN 43) ‘Science and Technology Committee’ (Parliament.uk, 28 March 2005) accessed 7 July 2011 Sharjil Kharal, ‘Importance of Expert Evidence’ (Dawn, 10 May 2011) accessed 7 July 2011 (FN 2,3,7,10 ‘Sir Roy Meadow Struck Off by GMC’ (BBC News, 15 July 2005) accessed 14 July 2011 (FN 34-42) ‘The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales: A New Approach to the Determination of Evidentiary’ Reliability (Law Commission, n.d.) accessed 7 July 2011 (FN 1,5,6,9,20,21) Read More