Thursday, February 7, 2008

Expert Evidence: Part Two: A Convincing Argument Against Court-Appointed Experts;



This Blog recently ran a commentary by lawyer James C. Morton which suggests that forensic experts can be removed from the fray of the adverarial system of criminal justice by setting up panels of court-appointed experts.

My gut reaction, was that Morton's proposal would hardly dent a system of forensic pediatric pathology in Ontario which the Goudge Inquiry has demonstrated to be so fundamentally flawed.

This simplistic approach is rejected by Professor Gary Edmond, of the University of New South Wales, in a paper he wrote for the Inquiry, entitled: "Pathological Science? Demonstrable Reliability and Expert Forensic pathology Evidence."

Edmond fears that the court-appointed expert approach could lead to the introduction of, "new and acute risks into the traditional adversarial system.".

"The use of court-appointed experts has long been celebrated as a solution to the problems problems with expert disagreement, partisanship, cost, and delay," says Edmond.

"It is true that recourse to court-appointed experts, especially if the parties have restrictions imposed on their ability to call (additional) experts, may implify and expedite proceedings.

However, the use of court-appointed experts, particularly their introduction into
adversarial systems, may be more problematical than is often assumed.

There are a range of apparently mundane procedural issues, all with the potential to impugn judicial independence and even determine the outcome of the litigation.

How, for example, will these experts be selected?135 Who picks them, and how?

How many experts should be chosen?

Should selection be undertaken informally through a judge’s social and professional network?

Are busy judges in a good position to determine which experts are appropriate in particular cases?

Should the relevant professional body provide a list (assuming the relevant type(s) of expertise is noncontroversial, the professional body not riven by controversy, and the existence of the field not in issue?

If so, is a judge confined to the list provided by a particular profession?

What are the implications of disregarding the “official” list?

Should judges select an expert or experts at the cutting edge of an issue—that is, those doing original research, embroiled in professional debates, and in possession of an intimate knowledge of current controversies?

Or, should they prefer generalists with no specific knowledge or predetermined opinions on a subject?

Institutional pressures and risks posed by the use of court-appointed experts may lead judges to make conservative selections.

Will judicial selection make experts more expensive as risk-averse judges select eminent experts from prestigious institutions?

Will the selection of safe and eminent experts raise standards of admissibility and proof and alter the operation of legal doctrines?

Will it be even more difficult for criminal defendants to challenge the opinions of eminent and established experts?

While on this point it is worth reflecting on the fact that distinguished experts—such as Professor Sir Roy Meadow, once the doyen of British paediatrics—are precisely the kind of expert that judges are likely to select and trust.

Will court-appointed experts make the outcome of litigation less predictable as additional experts introduce new opinions after much of the preparatory work, pleadings, and pleas have been finalized?

The use of court-appointed experts may actually complicate settlement negotiations and plea bargains and even stimulate more pretrial activity and litigation.

What about costs?

Who should pay for the expert(s)?

Will the use of court appointed experts lead to the use of more experts—an additional expert for every special issue?

What happens when the different parties want different types of experts?

Judicial preferences may be outcome-dispositive.138

If several experts are selected, how are different types of potentially incommensurable evidence to be reconciled?

Where a number of court-appointed experts are selected, what happens when they disagree? Also, what happens when the court-appointed expert(s) disagrees with the judge’s ultimate decision or reasoning?

Further, trial judges may be required to spend time and energy managing the credibility of a court-appointed expert, especially the appearance of independence and impartiality.

Efforts to protect or guarantee the credibility of a court-appointed expert
may (appear to) compromise judicial independence.

Examples from large-scale civil litigation in the U.S. suggest that court-appointed experts require considerable attention, management, and protection (to sustain the impression of independence).

In mass silicone-gel breast implant litigation, a panel of experts selected by a judge was challenged: because of the way they were selected as well as the suitability of their expertise; because private discussions and drafts of their final report were not discoverable; because of prior relations between members of the panel and major medical corporations; and because of their reasoning and conclusions.

During the trial, because the panel was continuously challenged, it requested independent representation to defend the increasingly anxious experts’ reputations and interests.

The unsatisfactory alternative was continuing judicial intervention.

The expert panel was eventually provided with its own lawyer who was ultimately paid more than US$1,000,000.

Interestingly, a judge hearing similar breast implant litigation in another U.S. jurisdiction also appointed a panel of experts.

This other panel was constituted by a slightly different assortment of specializations.

While the different panels came to roughly similar conclusions in relation to causation, what would happen if court-appointed experts, individually or as a group, disagreed, or two different panels (or experts) reached inconsistent conclusions in similar circumstances?

Which experts should a judge select in any subsequent litigation?

Should a panel’s findings pre-empt subsequent litigation? How should appellate courts respond?

Finally, what happens to public confidence in the courts and in individual judges when the credibility of an expert—especially an expert repeatedly appointed by the
same judge or court—is compromised?

All of these questions and scenarios are, at least potentially, manageable, but they
suggest that apparently simple solutions might actually be more complex and
disruptive to adversarial legal institutions, the practice of judging, and the
independence of the judiciary than is routinely suggested.

Many of these decisions introduce new and acute risks into traditional adversarial systems.

In criminal trials they threaten to erode widespread perceptions of fairness and public confidence; even where decisions are endorsed by appellate courts.

One of Edmond's most compelling points is that Sir Roy Meadow, the now disgraced pediatrician who was once the Doyen of British paediatrics, would have been the kind of expert that judges are likely to select and trust."

To this humble Bloggist, that reasoning would apply equally to Dr. Charles Randal Smith.