Staying Non-partisan – The Duty of an Expert
Insights from a Forensic Scientist
Experts are given the privilege albeit heavy responsibility to express expert opinions in their respective specialisations to assist the Court in resolving legal disputes. Experts are expected to be objective, independent and neutral in their forensic examinations and court testimony. The admonition of Professor Paul C.H. Brouardel, 19th century French medico-legalist and Chair of Forensic Medicine at Sorbonne University proved extraordinarily prescient and relevant for today’s forensic scientists: “If the law has made you a witness or an expert, remain a man of science; you have no victim to avenge or guilty or innocent person to convict or save. You must bear testimony within the limits of science.”1 “La preuvre par l’ADN et l’erreur judicaire” by Héliane de Valicourt de Séranvillers (2009) Librairie L’Harmattan. The original French version: “Si la loi a fait de vous un témoin ou un expert, demeurez un Homme de science, vous n’avez pas de victime à venger, de coupable ou d’innocent à condamner ou à sauver. Vous devez témoigner dans les limites de la science.” This dictum circumscribes the role of the forensic expert, delimiting it to the practice and communication of science that is unencumbered and free of partisanship, misrepresentation, judgement, indignation, sympathy and obligation to any party.
Forensic Science Does Not Have an Advocacy Role
Unlike an adversarial proceeding where opposing parties each supports a position, forensic science does not have an advocacy role. Simply put, there are no sides in forensic science. It does not matter which party engages the expert; what matters is the scientist’s professional conduct and whether his expertise can assist the Court in the pursuit of truth.
In their reports and court testimony, experts must be non-partisan, impartial and independent. They must not intentionally present false information, or selectively present information that favours the side that retained them. In the face of new or contrary evidence before trial or on the witness stand, an expert must have the open-mindedness and moral courage to change his opinions. Likewise, when an error or critical omission is pointed out by the opposing party, the expert must have the integrity and humility to concede, instead of “wriggling” or “digging in” to salvage his position. Experts must bear in mind their over-riding duty to the Court.
The Forensic Expert’s Overriding Duty to the Court
The forensic science community ought to be the foundation and pillar of truth, the bastion of objectivity. Experts should not have allegiance to a party; they answer to neither party, but to the Court. Many forensic scientists abide faithfully by this ethos and do their utmost to honour the truth, shun dissimulation, and ensure that their work adheres to the highest of standards. As reminded by DesPortes,2 B.L DesPortes, There are No Sides in Forensic Science. J. Forensic Sci., Jan 2018, Vol. 63, No. 1. science has the power to illuminate the truth, balance the scale of justice, and give meaning to the promise – “[t]he truth shall set you free.” Bias and mistakes on the part of the expert are too much to bear due to the dire consequences of causing injustice or a wrongful conviction. Conversely, doing objective forensic science with a clear conscience renders invaluable assistance to the Court for the considered evaluation of evidence.
Forensic Science Follows the Path Determined by Facts
As interpreters of science to the Court, forensic experts should never view cases as contests. A desire to win can be a gateway and slippery slope to misrepresentation of evidence and even serious ethical lapses. This is evidenced by the wrongful convictions and scandals due to the scientific misconduct of forensic scientists: Fred Zain, Joyce Gilchrist, Annie Dookhan, Kathleen Lundy and many others of their ilk.3 Forensic Science, Briefs for the Legal Practitioner, Chapter 15: Quality in the Forensic Laboratory and Chapter 16: Ethics, The Forensic Experts Group, 2017.
The science that experts apply must not be subverted or turned aside to further an unjust cause. Science follows the path determined by facts.4 Supra (See Note 2). Oft-repeated aphorisms are “Let the chips fall where they may” and “Let the evidence speak for itself”. In other words, evidence and science must lead the scientist; not the other way around. Forensic scientists must exercise the professional care, skill and proficiency expected of experts in their field of work. Using the scientific method, scientists glean information and data of an incident or crime in a methodical, systematic manner to draw balanced and fair conclusions, based on evidence and objective analysis. The honest expert’s findings and opinions will therefore be the same, regardless of which party engages him.
Beware the Unworthy “Expert”
“While it may never be possible to label and bar out the unworthy, it is hoped that a way may be found for the courts officially to recognise those who are qualified and worthy and thus render more effective their assistance in discovering and proving the facts.”
Albert S. Osborn
As Schofield5 William Schofield ‘Medical expert testimony of improving the practice’, Journal of Criminal Law and Criminology (1910) Vol 1, Issue 2. remarked: “No profession or society of men can be protected completely against unworthy members.” There are some self-appointed “experts” who fall short in competency; they lack proper training and experience, perhaps having only attended short training stints such that they do not have the specialised domain knowledge and technical ability to reliably perform the work expected of them. In short, they make false claims of their expertise and testify in areas outside the scope of their expertise. There are yet other “experts” who see themselves as advocates for whichever side that engages them, who for a fee, are willing to twist facts, misapply scientific principles, and adapt their findings and testimony to support the client’s case theory. Some go to the extent of guaranteeing that reports would be favourable to their clients. It is unfortunate that though the scientific principles and methods of a forensic discipline may be valid and relevant, such “experts” are not worthy of trust.
Successful unworthy “experts” are often polished and compelling communicators, adept at purveying erroneous opinions and misrepresentations under the cloak of scientific jargon. The involvement of unworthy “experts” in Court is the elephant in the room, of grave concern to the gatekeeper and fact-finder as this can potentially lead to miscarriages of justice. These biased experts can be so articulate, assertive and convincing in their presentation and demeanour that they sway, mislead and confuse the Court to the point of even nullifying scientifically sound forensic findings. Unfortunately, many legal practitioners with no formal qualifications in the relevant scientific field face challenges evaluating and cross-examining complex scientific evidence, and may struggle to distinguish between the wheat and the tares which grow together.
Potential Dire Consequences for the Judicial System
It is detrimental to a lawyer when his pseudo-expert’s inconsistent testimony gets torn apart during hot tubbing or under cross-examination because the “expert” is unable to defend his erroneous findings or support the basis of his conclusions.
Unworthy “experts” not only diminish their own reputation, but also bring harm to the credibility of the entire forensic discipline. Seasoned judges may become jaded from exposure to fallacious “expert” testimonies6 Florida Bar Member Responses, Comments and Attachments Daubert/Frye October 26 – November 15, 2015 that are filled with errors, speculations and bias, and lacking in logic and basis. They may eventually decide that opposing expert testimonies serve little purpose and are nothing but a waste of time and resources in a trial, preferring to rely more on factual evidence and eyewitnesses’ accounts. Sadly, this approach plays into the hands of unworthy “experts”, and amounts to giving up potentially useful and reliable scientific evidence. This approach of throwing the baby out with the bathwater to resolve the impasse appears to be taking a step backwards, hampering the advancement of the judicial system.
Enhancing Expert Testimonies
In the words of Osborn7 Albert Osborn, Questioned documents (2nd edition, 1929). back in 1910: “While it may never be possible to label and bar out the unworthy, it is hoped that a way may be found for the courts officially to recognise those who are qualified and worthy and thus render more effective their assistance in discovering and proving the facts.”
In July 2017, the Singapore Ministry of Law released a public consultation paper on the proposed amendments to the Criminal Procedure Code and Evidence Act. It introduced a procedure that regulated psychiatric expert evidence by having a panel of psychiatric expert witnesses that was regulated by a court-administered selection committee. The amended Criminal Justice Reform and Evidence (Amendment) Bills were passed in the Singapore Parliament in March 2018. Section 270 of the Criminal Justice Reform Act 2018 (No. 19 of 2018) states: “In any criminal proceedings, an opinion of a psychiatrist on any matter concerning psychiatry (when given as the opinion of an expert) is not admissible as evidence, unless the psychiatrist is a member of the panel of psychiatrists (called in this section the Panel) established for the purposes of this section.”8 Republic of Singapore Government Gazette Acts Supplement No. 16, 2018, Criminal Justice Reform Act 2018 (No. 19 of 2018).
The public was also invited to comment on Civil Justice reform agendas on the use of Single Joint Experts (SJE) in October 2018. Under Chapter 9, Rule 3(1), it was proposed: “Except in a special case and with the Court’s approval, the parties shall agree on one common expert”. Benefits of SJEs include cost and time savings due to less time spent on preparing the expert for trial and cross-examination during the trial, elimination of bias as the SJE has equal responsibilities to each party, greater clarity of issues, and enhanced possibility of settlement.9 Philip Fong “Expert Witnesses: Single Joint Expert and Hot Tubbing”, Annual National Medicolegal Seminar 2016, 22 October 2016. However, concerns have been raised that SJEs are not suitable in contentious or complicated proceedings where parties take diametrically opposing positions. Additionally, the accuracy of the SJE’s opinion is not challenged, and the Court is deprived of contrary expert opinions10 Ng Huan Yong, The Proposed Civil Justice Reforms, Singapore Law Gazette, January 2019. . More time and effort may also be spent to agree on joint instructions, and when the SJE’s report is unfavourable, a party may try to apply to the Court to admit his own expert.
Will regulating the list of experts and the use of SJEs assist the Courts in better recognising qualified and worthy experts? Only time will tell.
Communication with the Legal Fraternity
Experts should improve communication with the legal fraternity on the application of forensic science and its evidential value in the justice system, as well as enhance the use and reception of expert evidence in individual cases.
The dynamic, ambiguous and complex landscape we navigate in, where the whole truth is difficult to discern, requires forensic scientists to not only constructively engage our fellow scientists, but also improve communication with the legal fraternity on the application of forensic science and its evidential value in the justice system. As former Senior Judge Kan Ting Chiu remarked, “Ignorance is bliss. When it comes to forensic science and the legal practitioner, it is not true. When a lawyer has to deal with a matter touching on forensic science, his competence in law needs to be matched by a working knowledge of science.”11 Forensic Science, Briefs for the Legal Practitioner, Foreword, The Forensic Experts Group, 2017.
Through the provision of training to legal practitioners, we seek to better understand their needs and aid them in navigating key concepts, scientific terminologies and challenges within forensic science. It is our responsibility to address and correct misperceptions that may exist or arise when forensic science is applied to the administration of justice. A growing awareness of forensic science amongst legal practitioners is likely to enhance the use and reception of expert evidence in individual cases, facilitating legal proceedings.
Reputation and Credibility are Paramount to a Forensic Expert
A good reputation is priceless and takes years of hard work to earn, yet it can be ruined easily. Credibility is of immeasurable worth to a forensic scientist. Experts who repeatedly slant their testimony to the needs of their clients in disregard of scientific truth trade reputation for pecuniary rewards or other gains, impugn the value and validity of forensic science, and tarnish the science and profession.
That said, except for the truly unworthy expert who persistently proffers questionable testimony, we must not be overly punitive and harsh in calling out an expert whose opinion we disagree with. An expert’s reputation can be unjustly besmirched by unwarranted criticism, miscommunication or misunderstandings.
The forensic expert must guard against taking sides; he is mindful that he answers to neither party, but to the Court. In our opinion, it does not matter which party engages the forensic expert – be it law enforcement, prosecution, defence, plaintiff or defendant. What matters is the expertise and professional conduct of the forensic expert, whether the expert has performed an impartial, objective analysis, and reported conclusions that are true and faithful to the evidence, free from influence, bias and errors.
Besides communicating scientific findings in a clear and balanced manner, it is also important for experts to engage the legal fraternity to enhance the use and reception of expert evidence by legal practitioners. As our judicial system continues to innovate and adopt new approaches for the provision of expert evidence, it is paramount that we keep abreast of these developments, prepare and be ready for the changing landscape.
The sequel to this article – Engaging a Forensic Expert – will focus on the traits of an effective and cognisant expert, when, where and how to engage an expert, and case studies to illustrate how the professional advice of an expert and expert findings were vital in turning a case around.
|↑1||“La preuvre par l’ADN et l’erreur judicaire” by Héliane de Valicourt de Séranvillers (2009) Librairie L’Harmattan. The original French version: “Si la loi a fait de vous un témoin ou un expert, demeurez un Homme de science, vous n’avez pas de victime à venger, de coupable ou d’innocent à condamner ou à sauver. Vous devez témoigner dans les limites de la science.”|
|↑2||B.L DesPortes, There are No Sides in Forensic Science. J. Forensic Sci., Jan 2018, Vol. 63, No. 1.|
|↑3||Forensic Science, Briefs for the Legal Practitioner, Chapter 15: Quality in the Forensic Laboratory and Chapter 16: Ethics, The Forensic Experts Group, 2017.|
|↑4||Supra (See Note 2).|
|↑5||William Schofield ‘Medical expert testimony of improving the practice’, Journal of Criminal Law and Criminology (1910) Vol 1, Issue 2.|
|↑6||Florida Bar Member Responses, Comments and Attachments Daubert/Frye October 26 – November 15, 2015|
|↑7||Albert Osborn, Questioned documents (2nd edition, 1929).|
|↑8||Republic of Singapore Government Gazette Acts Supplement No. 16, 2018, Criminal Justice Reform Act 2018 (No. 19 of 2018).|
|↑9||Philip Fong “Expert Witnesses: Single Joint Expert and Hot Tubbing”, Annual National Medicolegal Seminar 2016, 22 October 2016.|
|↑10||Ng Huan Yong, The Proposed Civil Justice Reforms, Singapore Law Gazette, January 2019.|
|↑11||Forensic Science, Briefs for the Legal Practitioner, Foreword, The Forensic Experts Group, 2017.|