"WITH ORGANIZATIONS SUCH AS ASSOCIATION IN DEFENCE OF THE WRONGFULLY CONVICTED AND THE INNOCENCE PROJECT, AND WITH THE GOUDGE INQUIRY INTO THE WRONGDOING OF PATHOLOGIST DR. CHARLES SMITH, LIGHT HAS BEEN SHED ON THE MANY WRONGFUL CONVICTIONS THAT BRING DISCREDIT TO OUR CRIMINAL JUSTICE SYSTEM.".......
"BUT WE CAN TAKE STEPS TO IMPROVE THE QUALITY OF CIVIL JUSTICE RESULTS SO AS TO REDUCE THE INCIDENCE OF WRONGFUL CIVIL JUSTICE LITIGATION. SINCE EXPERT WITNESS TESTIMONY IS A COMMON FACTOR IN MANY WRONGFUL CRIMINAL CONVICTIONS IT SEEMS LOGICAL THAT EXPERT WITNESS TESTIMONY IS LIKELY A LARGE CONTRIBUTOR TO WRONGFUL CIVIL LITIGATION RESULTS. SO, A GOOD START WOULD INVOLVE A MASSIVE CHANGE TO PROCEDURES INVOLVING EXPERT WITNESSES.
WE MUST ELIMINATE THE HIRED-GUN MENTALITY OF EXPERT WITNESSES. JUDGES MUST BECOME BETTER GATE-KEEPERS OF EXPERT WITNESSES. LAWYERS MUST BE BETTER TRAINED TO CROSS-EXAMINE EXPERTS. EXPERTS MUST BE CONFINED TO GIVE TESTIMONY ONLY WITHIN THEIR SPHERE OF EXPERTISE."
ALAN SHANOFF: THE TORONTO SUN.
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"Kyle Unger has joined a long list of the wrongfully convicted, now vindicated," Alan Shanoff's column began, under the heading "Cracking down on 'expert' witnesses is a civil saver."
"A Manitoba judge acquitted Unger last month after hearing DNA evidence could not link a hair found at the murder scene to Unger," the November 1, 2009 column continued.
"Indeed there was no forensic evidence to link Unger to the murder.
The case also involved a falsely induced confession through use of a scheme known as the "Mr. Big" technique. This is an odious scam where a suspect is drawn into lucrative criminal activity and then encouraged to confess to a murder or other serious crime to satisfy his boss that he is trustworthy.
With organizations such as Association In Defence of the Wrongfully Convicted and the Innocence Project, and with the Goudge Inquiry into the wrongdoing of pathologist Dr. Charles Smith, light has been shed on the many wrongful convictions that bring discredit to our criminal justice system.
Much of the discredit is due to false or overzealous expert testimony.
But let's not kid ourselves. If there have been many miscarriages of justice in the criminal justice system due to overzealous expert testimony, what makes anybody think there haven't been even more miscarriages of justice in the civil justice system? After all, the standard of proof in the civil justice system is much lower than the beyond a reasonable doubt standard of proof used in the criminal justice system.
Logic tells me there must be many more miscarriages of justice in the civil justice system.
So what are we doing about it? It is facile to say we have an appellate court system to prevent civil miscarriages of justice. Most of the famous wrongful convictions were unsuccessfully appealed to the way to the Supreme Court of Canada.
Maybe we shouldn't care about wrongful civil justice results. After all, nobody ends up in jail due to mistakes in civil cases. But make no mistake, lives can be ruined by wrongful civil justice results. A wrongful finding of liability can lead to bankruptcy, ruined marriages, ruined retirement and severe psychological harm.
Conversely, a wrongful dismissal of a civil action can lead to catastrophically injured people living out their lives in relative poverty or with a substantial diminishment of the quality of their lives.
FINALITY AND CERTAINTY
I have no magic answer to this vexing problem. We must have some finality and certainty to civil justice disputes. We can't expect people to live with the uncertainty of a lawsuit hanging over their heads indefinitely. Barring fraud, we should not allow a civil judgement to be attacked after conclusion of the appeal process.
But we can take steps to improve the quality of civil justice results so as to reduce the incidence of wrongful civil justice litigation. Since expert witness testimony is a common factor in many wrongful criminal convictions it seems logical that expert witness testimony is likely a large contributor to wrongful civil litigation results. So, a good start would involve a massive change to procedures involving expert witnesses.
We must eliminate the hired-gun mentality of expert witnesses. Judges must become better gate-keepers of expert witnesses. Lawyers must be better trained to cross-examine experts. Experts must be confined to give testimony only within their sphere of expertise.
All previous adverse comments, judicial findings and disciplinary proceedings concerning the expert must be disclosed to the court. The fees paid to the expert must be disclosed along with all communications and documents exchanged between the expert and the side that hired him. A list of all previous cases in which the expert has testified or provided an expert report should be disclosed.
Bluntly put, we must make it as easy as possible to discredit expert witnesses and bar them from becoming advocates.
By curbing false and overzealous expert testimony we will go a long way towards curbing wrongful civil justice awards."
The column can be found at:
http://www.torontosun.com/comment/columnists/alan_shanoff/2009/11/01/11594611-sun.html
Harold Levy...hlevy15@gmail.com
