EWJ Dec 2023 - Journal - Page 27
A Tale of Two Experts How to Deal with Criticism
by Nicholas Deal - www.bondsolon.com
It is an occupational certainty that expert witnesses
will be challenged robustly in cross-examination; how
the expert deals with that challenge will be revealing
and will be commented on by the judge.
Dr. E clearly did not accept that challenge made by the
defence and stood by his assertion of independence. Although we will never know how the jury arrived at their
decision to convict, it is a fair assumption to make that,
in doing so, they accepted Dr. E’s evidence and must
have found him to be a reliable witness.
How should an expert respond to criticism, challenge,
and adverse comment?
Dr. E’s approach? Robust defence.
This article looks at the experience of two experts, Dr.
E and Mr. T, in two very different cases. Both experts
dealt with the challenge appropriately and their
approaches are worth evaluating.
Expert Witness: Mr. T
Mr. T is another very experienced expert witness. A
Chartered Surveyor of many years standing, he had
been commended in 2014 by a judge in the Central
Family Court for approaching a complex valuation
with the “required degree of expertise and independence” expected of an expert witness.
Expert Witness: Dr. E
Dr. E is a retired consultant paediatrician who was
instructed by the prosecution in the recent murder
trial of Lucy Letby.
In 2019, he was criticised in the Upper Tribunal
(Lands Chamber) for not having inspected the objectors’ properties and, therefore, not being able to give
a properly evidenced opinion.
During his cross examination, two paths were
followed in order to try to undermine his credibility
and reliability: the way in which he had become involved in the prosecution case and previous criticism
of him by a judge in another case.
He accepted the criticism made by the Deputy President of the Tribunal− that he should have applied to
the tribunal when his solicitors refused to allow him the
time to inspect the properties. He understood that he
should not have allowed his instructing solicitors to limit
his ability to fulfil his overriding duty to the court.
It was put to him, and Dr. E accepted, that he had
contacted the National Crime Agency when he became aware that Cheshire police were investigating
the infant mortality rate at the Countess of Chester
Hospital, saying that he had expertise in neonatal
cases and would be interested to help.
His evidence was not given much value by the judge
in his judgment.
The defence accused him of “touting” for the role of
expert witness for the prosecution.
That was a stinging criticism, but one which Mr. T had
to, and quite rightly did, accept. Mr. T went further
when writing his next report for a new and unrelated
case. He drew the court’s attention to the criticism
made in the 2019 case, giving the case reference and
the paragraph number in the judgment. He openly
admitted where he had been at fault and went on to
describe how he had gone back to the expression of
the duty to the court in CPR35. He also made sure, in
the instant case, that he was properly complying with
his duty to the court.
In evidence, he stated that he was simply offering his
professional opinion to the police should they need it.
He said that he was fully independent and impartial,
that he knew his duty to the court and was fulfilling
that duty. When challenged that he had adopted a
partisan approach, he went further by saying:
“I’m completely independent. I have been giving
evidence in court for a long time. I know about impartiality. I know about the rules. I’m not here for the
prosecution. I’m not here for the defence. I’m here
for the court.”
Result? The Tribunal in the second case found him to
be a credible, reliable witness with whom they agreed.
Mr. T’s approach? Transparent admission of fault.
He was also faced with the comments of a judge in the
Court of Appeal in an unrelated case, who had criticised Dr. E for producing a report which the judge
described as not providing a “balanced opinion”.
What can expert witnesses learn?
There should never be any substitute for honesty and
integrity. An expert must know the scope of their
role and their duty and be able to express and
demonstrate that they are fulfilling it at all times in
their work as experts.
The defence used the above issues to argue that the
judge should exclude Dr. E’s evidence from the jury
on the grounds that he failed to act appropriately,
with independence, impartiality and objectivity.
Criticism and challenge will come.
The trial judge, Mr. Justice Goss, rejected that
argument, on the basis that it was for the jury to
consider the issue of Dr. E’s reliability by reference to
all the evidence in the case.
EXPERT WITNESS JOURNAL
If it is well founded (i.e. if the expert has erred or not
done something which they should have done), the
expert must immediately accept that and not try to
defend the indefensible. The longer they fight the
point, the more their credibility will be destroyed.
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DECEMBER 2023