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Henderson, Emily; Seymour, Fred --- "Expert witnesses under examination in the New Zealand criminal and family courts" [2013] NZLFRRp 1

Last Updated: 22 March 2021


EXPERT WITNESSES UNDER EXAMINATION IN THE

NEW ZEALAND CRIMINAL AND FAMILY COURTS


EMILY HENDERSON AND FRED SEYMOUR

School of Psychology, University of Auckland, Auckland, New Zealand

March 2013

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Produced with the assistance

of the New Zealand Law Foundation

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Acknowledgments

This project was undertaken with the financial assistance of the New Zealand Law Foundation. We are very grateful to the Foundation for its support and especially to Lynda Hagen and Dianne Gallagher for their kindness throughout.

We are profoundly grateful to the 27 expert witnesses and seven lawyers whom we interviewed for this study and whose comments are its main substance. Without your generosity, both in giving your time and in your openness about your experiences and opinions, this report would not exist. We hope you find it useful.

We are also very grateful for the assistance and support of our advisory group: Dr Suzanne Blackwell, Philip Hamlin and Dr Patrick Kelly, who all made themselves available to us throughout this project.

In the late stages of writing this report, and with the kind consent of the Chief District Court Judge, Her Honour Judge Doogue, we met with five District Court Judges to discuss our findings and recommendations. We are very grateful to Their Honours for their time, their preparedness to read a very lengthy document and their openness to discussion. It was extremely helpful to be able to discuss our findings and our thoughts about possible reforms.

We are very grateful to Laura Hoyano, Joyce Plotnikoff, Professor Penny Cooper, Dr Kirsten Hanna, Stuart Henderson, Professor John Spencer, Thomas Biss, Dr Christopher Bleby QC, Nicole Dore, Alice Hyndman, Professor Dale Ives and Dr Elisabeth Peden for their kindness in reading and commenting upon various drafts and/or for their generosity in responding to various queries and requests throughout the project.

We are also grateful to Rochelle Laurence who typed all but two of the interview transcripts, despite the often poor sound quality of the recordings, with unfailing enthusiasm and goodwill. We would also like to thank Stephanie Wood for her work in checking the referencing.

We would also like to thank Henderson Reeves, Lawyers for lending the digital recording and transcribing equipment used for the interviews, providing a substitute typist and for printing the final report.

Our thanks to Sharon Walker at the Psychology Department for her help managing the Law Foundation grant and assisting with various administrative issues.

On a personal level, Emily would like to thank Thomas, William, Paddy, James and Alice and Patsy and Stuart for their love and support. She would particularly like to thank Patsy Henderson-Watt for first alerting her to the issues discussed in this report.

Contents


Chapter One: Literature Review


  1. Introduction

As is often pointed out in discussions of expert opinion evidence, both the criminal courts and the Family Court are far more reliant upon expert witnesses now than at any time previously. However, at the same time, there is often mistrust of the motives and skill of the experts themselves. There is a deep and long-standing suspicion amongst the judiciary and lawyers not only that experts might misrepresent the facts but also that the very authority which is the reason we bring them to court might overawe the jury, depriving them of their critical faculties. The public are also at times wary of experts, especially in the wake of the revelation of a miscarriage of justice. A level of watchfulness is justified: Undoubtedly, here and overseas, unreliable expert evidence has led to wrongful convictions.

Simultaneously, however, there are persistent anecdotal reports of experts who mistrust the courts so greatly that they refuse to give evidence. In these accounts, experts complain of grossly unfair treatment by cross-examiners and deeply flawed and inadequate processes for evaluating their evidence. These reports originate both from expert witnesses themselves and also from lawyers unable to find experts to appear for their clients. However, as the UK Supreme Court noted in Jones v Kaney,1 there is a dearth of empirical research as to how experts actually experience testifying in an adversarial context.

This is a qualitative empirical research project examining the experiences of experts who testify in both the criminal and Family Courts in New Zealand regarding child abuse and neglect and sexual assault generally. The study considers whether there is truth in the anecdotal accounts of widespread reluctance amongst experts and it also examines lawyers’ and judges’ suspicions of bias amongst experts. It considers the areas of the court process which experts find most difficult and proposes a number of solutions. The study group was limited to experts in the field of child abuse and neglect and of sexual assault generally. However, we believe that our findings will be relevant to other areas of expert evidence.

This report is divided into three parts: the remainder of this chapter summarises the literature on expert witnesses to date, describing, first, the problems various researchers and commentators have found with expert evidence and, second, outlining the main reform proposals those same writers have put forward. This is not a discussion of the law pertaining to expert evidence, as many legal analyses already exist. The second section contains the empirical part of this project: Chapter Two sets out the project’s methodology; Chapter Three describes the findings of the interviews with expert witnesses; Chapter Four describes the smaller companion study of lawyers’ opinions. The final chapter recaps the findings of the previous chapters and sets out a number of recommendations for reform.

  1. Problems with Expert Evidence

The problems identified with expert evidence in the literature are, in summary:

1 Jones v Karney [2011] UKSC 13, at [56] (per Lord Phillips P), [116] (per Lord Dyson)

The picture is complex and nuanced. It includes issues with the substance of expert evidence, the experts themselves and with the courts.

The literature, however, comes from a number of accusatorial countries, including particularly England and Wales, the US, Canada and Australia as well as New Zealand. It is difficult to be certain that the problems are the same in each of these quite distinct jurisdictions. However a number of commentators reviewing evidence admitted in each jurisdiction claim that the same types of expert evidence are admitted to courts in all of the jurisdictions,2 and certainly commentators appear to identify with each others’ descriptions of problems in their particular jurisdictions. Nonetheless, some of the commentary and the research literature may not be directly transferable.

2.1 Flawed Expert Evidence

There is a strong concern that some expert evidence is significantly flawed or of poor quality. This might be because of concerns that the expert is incompetent or biased,3 or even dishonest.4

In the UK, wide-spread public concern about expert evidence emerged in the last decade over a series of child death cases in which women were convicted of the murder of their infants based on flawed expert evidence, and the convictions were later overturned on appeal. There has been considerable media attention given to these cases. The miscarriages are cited as the basis of the England and Wales’ Law Commission review of the law relating to expert witnesses and its reform recommendations.5 Furthermore, in 2012 a report by Ireland et al. purporting to show problems with the quality of expert reports in the Family Courts and the qualifications of the report writers received considerable publicity, although the research was later shown to be itself questionable.6

2 Gary Edmond “Is reliability sufficient? The Law Commission and expert evidence in international and interdisciplinary perspective: Part 1” (2012) 16(1) E&P 30 at 63 [Edmond 2012].

3 Downes J “Concurrent Expert Evidence in the Administrative Appeals Tribunal: The New South Wales Experience” (paper presented to the Australasian Conference of Planning and Environment Courts and Tribunals, Hobart, 27 February 2004) at 1 [Downes 2004]; Woolf LJ Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (prepared for Lord Chancellor’s Department, 1995) at 183 [Woolf LJ 1995]; Ian Freckelton, Prasuna Reddy and Hugh Selby Australian Judicial Perspectives on Expert Evidence: An Empirical Study (Australian Institute of Judicial Administration, Victoria, 1999) at 2-3, 23-29, 37-38 [Freckelton 1999].

4 Edmond 2012 at 40; Dawn McQuiston–Surrett and Michael J Saks “The testimony of forensic identification science: what expert witnesses say and what factfinders hear” (2009) 33 LHUMB 436 at 437 [McQuiston-Surrett & Saks 2009]. Thankfully, however, the National Research Council of the National Academies (“NAS”) in its review of a number of forensic sciences concluded that deliberate fraud appears rare, National Research Council of the National Academies Strengthening Forensic Science in the United States: A Path Forward (National Academies Press, Washington, 2009) at 45 [NAS Report 2009].

5 Law Commission of England and Wales Expert Evidence in Criminal Proceedings in England and Wales (LAW COM No 325, 2011) at [1.19] [EWLC Report 2011]; Sinead Ring “Due process and the admission of expert evidence on

recovered memory in historic child sexual abuse cases: lessons from America” (2012) 16(1) E&P 30 at 79 [Ring 2012].

6 Professor Jane L Ireland Evaluating Expert Witness Psychological Reports: Exploring Quality. Summary Report (University of Central Lancashire, 2012) [Ireland 2012]. Ireland’s 2012 review of a number of reports in the Family Court received widespread publicity when she declared she had found a “wide variability in report quality, with unqualified experts being instructed to provide psychological opinions.” She found one fifth of the psychologists were unqualified on the basis of the CVs they attached to their reports and two thirds of the reports were rated poor or very poor. However, the methodology of Ireland’s report has been criticised. The Family Justice Council who funded the research declined to publish it following negative academic peer reviews. The report now available is published only on Ireland’s University website.

In the US, the revelation of miscarriages has been on a larger scale. The use of DNA analysis to review evidence has exonerated a significant number of convicted people and has shown that in some cases the expert evidence used to convict those people was significantly lacking:

The number of exonerations resulting from the analysis of DNA has grown across the country in recent years, uncovering a disturbing number of wrongful convictions—some for capital crimes—and exposing serious limitations in some of the forensic science approaches commonly used in the United States. According to The Innocence Project, there have been 223 post-conviction DNA exonerations in the United States since 1989 (as of November 2008). . . [E]ven those [forensic scientists] who are critical of the conclusions of The Innocence Project acknowledge that faulty forensic science has, on occasion, contributed to the wrongful conviction of innocent persons.7

In New Zealand, while there has been no particular scandal, expert evidence has been highlighted in media reporting of many recent high profile trials, including several extended magazine pieces. The examination and cross-examination of experts in such trials now features regularly in print, radio and television news.

Of course, while the issue of the quality of expert evidence has become particularly prominent recently, the concern is long standing.8

Concerns about specific instances of expert evidence have been joined by a wider critique of the sufficiency of the science behind many forensic science disciplines. In 2009 the US National Academy of Science (the “NAS”) released a major report damning the state of forensic science and the extent to which it is accepted by the courts, especially the criminal courts. The forensic sciences under review did not include psychology or psychiatry but the “hard” sciences such as DNA and drugs testing through to fingerprint analysis and autopsy.9 They concluded that many of the forensic sciences they reviewed lacked sufficient empirical basis. Only DNA analysis was considered sufficiently proven.10 The NAS was highly critical of the competence of judges, lawyers and jurors,11 calling the courts “utterly ineffective” in apprehending and excluding poor expert evidence.12 In the meantime, the same types of expert evidence which were criticised by the NAS are routinely accepted in courts in England and Wales,13 Canada14 and in New Zealand.

The NAS and others also criticise experts’ lack of awareness of the fragility of their techniques and their tendency to overstate the strength of the evidence. The NAS commented that although deliberate fraud appears rare,

Failure to acknowledge uncertainty in findings is common: . . . The insistence by some forensic practitioners that their disciplines employ methodologies that have perfect accuracy and produce no errors has hampered efforts to evaluate the usefulness of the forensic science disciplines.15

7 NAS Report 2009 at 42; see also examination of number of specific cases at 44-46 and 88-90.

8 For the history in the US see the review in National Research Council 2009 at 88-90; for England and Wales see, eg R v Preece [1981] Crim LR 783 and R v Arthur [1981] 12 BMLR 1, discussed by DJ Gee “The Expert Witness in the Criminal Trial” [1987] Crim LR 307 at 310 [Gee 1987], or the Birmingham Six discussed by Peter Alldridge “Recognising Novel Scientific Techniques: DNA as a Test Case” [1992] Crim LR 687 [Alldridge 1992].

9 NAS Report 2009 at 38; See also McQuiston-Surrett & Saks 2009 at 437.

10 NAS Report 2009 at 45.

11 NAS Report 2009 at 87- 88.

12 NAS Report 2009 at 53, chpt 6.

13 Edmond 2012 at 43-44.

14 Edmond 2012 at 43.

15 NAS Report 2009 at 47.

Similarly, the English Court of Appeal has also criticised16 “experts whose testimony strayed beyond their expertise or whose evidence took on an irrefutable significance that it did not merit.”17

Almost no studies exist where the researchers attempted to grade the actual sufficiency of expert evidence, as opposed to investigating the causes of specific miscarriages of justice. One is that of Suzanne Blackwell, a senior clinical psychologist, who surveyed 20 New Zealand cases between 1991 and 2003 in which psychologists gave expert evidence in relation to the now- abolished s.23G Evidence Amendment Act 1989. She found that only a handful of these cases involved experts who acted inappropriately. In three of the sample cases the expert overstepped their role and gave evidence on the ultimate issue (at the time still illegal) and in three, experts gave evidence not supported by the research literature.18

The fact of past miscarriages based upon flawed expert evidence and the NAS’s warning regarding the current lack of proof of the reliability of many forensic sciences underlines that the court must take care when admitting expert evidence.

2.2 Are the Decision-Makers Competent to Assess Expert Evidence?

Against this background of disquiet over the reliability of expert evidence, there has been a considerable focus on the ability of the courts to identify flawed evidence. There is a significant body of commentary which says that neither jurors nor judges are competent to assess expert evidence. It is feared that dishonest, biased, incompetent or merely wrong experts could easily mislead an incompetent fact-finder.19

2.2.1 Jury competence

There is a very widely held perception amongst commentators, including senior judges and barristers, that juries are not competent to analyse some expert evidence.20 So well-established is this perception amongst commentators that it has been called the “essential paradox of expert testimony”: “Jurors routinely need to evaluate expert evidence in order to make their decisions, yet their expertise with respect to the evidence is usually limited.”21

This perception is also present in New Zealand: For example the New Zealand Law Commission (“the NZLC”) is presently considering a proposal to abolish juries in sex assault trials. The New Zealand doctors’ organisation which provides medical examiners to the police in cases of alleged sexual assault, Doctors for Sexual Abuse Care (or “DSAC”) in its response to the NZLC supported this proposal on the basis that, inter alia, juries have tremendous difficulty understanding expert evidence.22

16 E.g. R v Gardner [2004] EWCA Crim 1639, cited by Leveson LJ in his Speech to Bond Solon Annual Expert Witness Conference (Expert Witness Institute Annual Conference, London, 2009) at 6 [Leveson LJ 2009].

17 Leveson LJ 2009 at 2. This concern is also reflected in advice to commentators who advise experts to be very clear about the limits of their expertise and opinions (eg Leveson LJ 2009 at 6).

18 Suzanne Blackwell “Child Sexual Abuse on Trial” (PhD thesis, University of Auckland, 2007) at 96-97 [Blackwell 2007].

19 Michael Welner, Theresa Mastellon, Jada J Stewart, Briana Weinert and John MB Stratton “Peer Reviewed Forensic Consultation: Safeguarding Expert Testimony and Protecting the Uninformed Court” (2012) 2 Journal of Forensic Psychology Practice 1, at 2-3 [Welner 2012]; Bernstein, David E “Expert Witnesses, Adversarial Bias and the (Partial) Failure of the Daubert Revolution” (2008) Iowa Law Review 101 [Bernstein 2008].

Edmond 2012 at 43; NAS Report 2009 at 53, chpt 6.

20 Eg in England and Wales see Alldridge 1992 at 695-96 and EWLC Report 2011 at [1.15]-[1.16]; in the US see Welner 2012, 3; in Australia see Geoffrey L Davies “Current Issues - Expert Evidence: Court-Appointed Experts” (2004) 23 CJQ 367 at 368, 371 [Davies 2004]; Steven Rares “Using the “hot tub” - how concurrent expert evidence aids understanding issues” (2012) 31(1) CJQ 30 at 31 [Rares 2012]; Tony Ward “Usurping the role of the jury? Expert evidence and witness credibility in England criminal trials” (2009) 13 International Journal of Evidence & Proof 83, at 85, 92 [Ward 2009]; NAS Report 2009.

21 Sanja Kutnjak Ivkovi and Valerie P Hans “Juror's Evaluations of Expert Testimony: Judging the Messenger and the Message” (2003) 28 Law and Social Inquiry 441 at 478 [Ivkovi & Hans 2003].

22 Doctors for Sexual Abuse Case Executive Submission to the Law Commission March 2012 section C9 [DSAC 2012].

Lord Justice Auld in his Review of the Criminal Court in England and Wales was sceptical of the competence of non-specialist lay jurors, especially when given little or no support in adjusting to the court system and in understanding the particular trial.23 Auld LJ made a number of recommendations for the improvement of jury comprehension (discussed below).24 Subsequently, the two most recent Lord Chief Justices have called for juries to have greater assistance in understanding trials.25

That jurors are not always equipped to evaluate expert evidence is one of the fundamental assumptions underlying the rules governing its admission. As Auld LJ remarked, many of the rules of evidence and criminal procedure

derive from judges' lack of confidence in the competence of juries for their task, despite their tradition of eulogy of the jury system. Hence also their elaborate directions on the law, emphatic cautions and often laborious rehearsal of the evidence before permitting jurors to consider their verdict. Dr Glanville Williams, one of the greatest English academic criminal lawyers of the last century, observed, citing Mr Justice Swallow in Sir Alan Herbert's hilarious tale, Uncommon Law, that such assistance should be deemed necessary is an acknowledgement of the peculiar difficulties of an amateur tribunal: "Gentlemen of the jury, the facts of this distressing and important case have already been put before you some four or five times, twice by prosecuting counsel, twice by counsel for the defence, and once at least by each of the various witnesses who have been heard; but so low is my opinion of your understanding that I think it necessary, in the simplest language, to tell you the facts again". 26

In New Zealand, there are two tests which must be overcome before expert evidence is admitted: The “utility” and the “risk analysis” tests.27 It must be proved that an issue in the case is so far outside the jury’s understanding and experience that the expert evidence will be useful or even, in some jurisdictions, necessary for them to decide the issue.28 Second, expert evidence must be shown to be sufficiently reliable to take the risk of placing it before the jury.29 Each test is essentially an exercise in risk reduction: The utility test attempts to limit expert evidence to that which is really important, since the jury effectively cannot or will have difficulty deciding the issue unaided. The reliability test attempts to ensure that the evidence has in some measure been vetted to ensure it will not be too great an error if the jury accepts it without proper consideration.30

Several aspects of expert evidence have been described as potential problems for jurors. First, where the evidence is complex or technical; second, where the expert evidence is lengthy as well as complex and, third, where there are also complicated methodological issues.31 The jury’s difficulty grasping complicated information is likely, it has been argued, to impact even more severely upon defence than prosecution since the defence critique, as represented both in the evidence presented by its own expert and its cross-examination of the prosecution evidence will

23 Auld LJ Review of the Criminal Courts of England and Wales (Lord Chancellor’s Department, London 2001) at [15]-

[22] [Auld Report 2001].

24 Auld Report 2001, chpt 5.

25 Cheryl Thomas Are Juries Fair? (Ministry of Justice Research Series 1/10, 2010) at 3 - 4 [Thomas 2010].

26 Auld Report 2001 at [5].

27 Laura Hoyano and Caroline Keenan Child Abuse: Law and Policy Across Boundaries (OUP, Oxford, 2010) at 873-874 [Hoyano & Keenan 2010]; Colin Tapper Cross & Tapper on Evidence (10th ed, Butterworths, London, 2004) at 556.

28 See NZCA discussion in Aryan v R [2010] NZCA 57.

29 Hoyano & Keenan 2010 at 873.

30 The NZCA has said that at times the idea that psychological information is generally within the juries’ knowledge has been used to obfuscate, or avoid having to deal with expert evidence. See review of comparative and NZ case law by the NZCA in Aryan v R at [22] discussing the “obfuscat[ory] . . .belief that judges and juries are thoroughly knowledgeable about “human nature” and that no more is needed”.

31 Edmond 2012 at 50

often rest on a highly complex analysis of the methodology and theory behind the prosecution evidence, potentially harder to understand than the prosecution evidence itself.

Some have also suggested a “CSI Effect”, a title taken from the popular US television series of the same name in which forensic scientists solve crimes by analysing tiny traces of physical evidence, the fear being that as a result of such programmes, juries may have an unrealistic expectations of the amount of physical evidence should be available and also expect that expert witnesses will be able to determine guilt with a high degree of certainty.32

That juries are not competent to assess complex or lengthy technical evidence is the major reason behind the legislative restriction on using juries in serious fraud trials. Moreover, Auld LJ argued that any jury is likely to be so confused by the unfamiliar courtroom environment and procedure that they will struggle to absorb and comprehend any evidence or argument put before them.33

As well as these concerns about juries’ ability to understand expert evidence, the courts, lawyers, and legal commentators have long been preoccupied by a concern that juries are not equipped to detect bias amongst expert witnesses.34

Empirical studies of juries’ competence

A number of studies have considered jurors’ evaluations of expert evidence, both after real trials and in simulations. Studies of jurors are limited by a number of factors:35 While some are quite large,36 some have very small samples.37 Many concentrate on complex expert evidence and on only one or two types of expert evidence.38 Almost all are American and most concern civil cases,39 with the exception of studies of rape trials and death penalty cases. The relevance of these overseas studies to New Zealand is questionable.40 However, there are two New Zealand studies of jury trials, both of which involve actual jurors in criminal cases and both of which

32NAS Report 2009 at 48-49; McQuiston-Surrett & Saks 2009 at 451 also comment that “the exaggerated view most jurors have about the nature and capabilities of forensic identifications is not easily remedied.” See also Leveson LJ 2009 at 2 opining that the frequency of resort by lawyers to experts may owe itself partly to the increased reverence for forensic science born of television programmes; Elisabeth MacDonald and Yvette Tinsley From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (VUP, Wellington, 2011) at 230 [MacDonald & Tinsley 2011]; Suzanne Blackwell and Fred Seymour “The Role of the Psychologist in Criminal Proceedings” in Fred Seymour, Suzanne Blackwell and John Thorburn (eds) Psychology and the Law in Aotearoa New Zealand (New Zealand Psychological Society, Wellington, 2011) at 119, 122-123 [Seymour, Blackwell & Thorburn 2011].

33 Auld Report 2001 at [22].

34 This is true in England, the US and Australia, although there is sometimes a perception that US experts are more likely to be biased than experts elsewhere see eg. Alan Shilston “Some reflections on the Role of the Expert Witness” (1992) 58 Arbitration 251 at 255 [Shilston 1992]; EWLC Report 2011 at [1.23]; Joseph Sanders “The Merits of the Paternalistic Justification for Restrictions on the Admissibility of Expert Evidence” (2003) 33 Seton Hall L Rev 881 at 919 [Sanders 2003]; Carol Krafta et al “Judge and Attorney Experiences, Practices and Concerns Regarding Expert Testimony in Federal Civil Trials (2002) 8 Psychology, Public Policy and Law 309 [Krafta et al 2002]; Rares 2012 at 31; Welner 2012 at 3; Ring 2012; see also reasonably constant references to party-appointed expert witnesses being biased in Jones v Karney [2011] UKSC 13 (ie [81]).

35See discussions of limitations in, inter alia, Ivkovi & Hans at 449-450; Margaret Kovera, Melissa Russano and Bradley McAuliff “Legal Decision-Makers’ Abilities to Evaluate Expert Evidence in Hostile Work Environment Cases” (2002) 8 Psychol, Pub Pol’y & L 180 at 197 [Kovera et al 2002]; MacDonald & Tinsley 2011 on the limitations of juror research at 224-225.

36 Eg Ivkovi & Hans’ 2003 analysis of interviews and/or questionnaires with 265 actual jurors, including the qualitative analysis of 55 transcripts of interview with jurors (at 450-451).

37 Eg Molly Selvin and Larry Picus The Debate over Jury performance: Observations from a Recent Report of an Asbestos Case (Rand Institute for Civil Justice, 1987) [Selvin & Picus 1987]; American Bar Association Jury Comprehension in Complex Cases (Special Committee of American Bar Association Litigation Section, 1989) [ABA 1989]; Joseph Sanders “Jury deliberation in a complex case: Havner v Merrell Dow Pharmaceuticals” (1993) 16 Justice System Journal 45 [Sanders 1993].

38 Ivkovi & Hans 2003 at 449-450.

39 Ivkovi & Hans 2003 at 449-450.

40 Warren Young, Neil Cameron and Yvette Tinsley Juries in Criminal Trials: Part Two: A Summary of Research Findings

(NZLC PP37, v2, 1999) at 9 [Young et al. 1999] and Blackwell 2007 at 55-56 raise the same questions.

discuss expert evidence to some extent.41 Ultimately, while the empirical evidence is not conclusive, it suggests that juries do have problems understanding and evaluating some expert evidence, and are sometimes prepared to accept flawed evidence.42

The New Zealand studies of juries referred to above were Warren Young, Neil Cameron and Yvette Tinsley in 199943 and Suzanne Blackwell in 2007. Whilst not specifically focused on expert evidence, their findings provide an important foundation for the consideration of the more specific research discussed later.

Young et al. studied 312 jurors in 48 criminal trials, many of which were complex cases. Nineteen included expert witnesses (without stating the nature of their expertise). Blackwell interviewed 120 jurors in 23 trials (four of which included evidence from an expert witness, a medical examiner) about their preconceptions about child sexual assault trials but in which she interviewed jurors about their beliefs about expert witnesses generally.44

Young et al.’s findings support Auld LJ’s contention that jurors are likely to find even normal court process confusing. Most jurors were extremely ignorant about the legal system. Many were “surprised, even shocked, by the pressures and responsibilities involved in jury service.”45 They often found the trial process, the legal directions and the case presentations and the oral evidence confusing and frequently misinterpreted the information they were given.46 A “substantial number” of jurors overall in all types of cases reported difficulty in understanding the evidence of even ordinary witnesses.47 They found the evidence boring and struggled to remember it during deliberations. These difficulties were exacerbated where the evidence was lengthy, technical or confusing.48 These are salient reminders that jurors listening to expert evidence have more to deal with than simply the task of comprehending that evidence: They are often struggling to adapt to a worrying responsibility and an alien environment; they are already stretched by unfamiliar legal jargon, taxed by the amount of information to absorb and struggling also with the oral method of information presentation. These pressures may increase any difficulty comprehending complex expert evidence.

Studies have suggested that juries have difficulty ignoring inadmissible evidence or irrelevant factors.49

Returning to the “CSI Effect”, Young et al.. also discovered that jurors were often fixated on the need for “hard evidence” (i.e., fingerprints, medical findings) and were reluctant to convict in its absence, even where the circumstantial evidence had convinced them of the accused’s guilt. Similarly, Blackwell noted that “many juror participants mentioned a need for DNA or positive evidence as necessary elements of a conviction” for child sexual assault,50 which may be consistent with a CSI effect or simply indicate high levels of scepticism about sex cases.51 Blackwell found that the presence of corroborative evidence in child sex cases, scientific or not,

41 Young et al. 1999; Blackwell 2007.

42 Ivkovi & Hans review literature: citing John DeWitt, James Richardson and Lyle Warner, “Novel scientific evidence and controversial cases: a social psychological examination” (1997) 21 Law and Psychology Review 1.

43 Young et al. 1999.

44 Blackwell 2007 at 117.

45Young et al. at 1999 [2.3]; see also [2.43].

46Young et al. 1999 at [2.43] - [2.46], [2.55], [7.12] and [7.13]. However, overall although misunderstandings often persisted into jury deliberations, the researchers concluded that they resulted in hung juries or doubtful verdicts in only 4 of 48 cases: Young et al. 1999 at [7.25]. However, jurors’ incapacities “at least contributed to perverse or compromise verdicts in two cases, and a hung jury in a third”: Young et al. 1999 at [3.18].

47Young et al. 1999 at [3.3-3.5].

48Young et al. 1999 at [3.13] and [3.18].

49Edmond 2012 at 52 reviews studies. Cf Young et al. 1999 at [7.57] who found that juries did try to ignore pre-trial publicity.

50Blackwell 2007 at 220.

51Blackwell 2007 at 259, see also at 245-255.

was strongly determinative of a finding of guilt.52 Unfortunately, as Blackwell noted, there is rarely any positive forensic evidence, such as medical or DNA results, in child sex trials.53

The rest of this section considers the research specifically about juries’ ability to assess expert evidence, most of which is from the US. The studies show that juries appear to have significant difficulties with some aspects of expert evidence.

Statistical information

First, studies show that jurors find statistical and technical evidence most difficult to absorb. They often have difficulty distinguishing between important scientific expressions such as “match,” “probable” and “consistent with,”54 are often poor at probabilistic judgments and at understanding the differences between estimates of high, moderate and low probability.55 These difficulties are exacerbated where there is a large volume of information to absorb.56 The NAS points out that these misunderstandings are not entirely the layperson’s fault since there is no established scientific terminology for describing degrees of risk or probability.57

Research has found that jurors are also insensitive to variations in the quality of empirical research, and generally fail to notice various methodological flaws.58 For example, jurors have been found not to appreciate the greater authority of quantitative analyses, giving more weight to non-quantitative and subjective expert evidence (i.e., a risk assessment by a clinician rather than an actuarial expert).59

Peripheral reasoning

Research also suggests that jurors often rely on marginal or irrelevant “peripheral” factors to assess expert evidence, such as the expert’s appearance, their ability to explain things simply, their confidence, their credentials and reputation.60 While some peripheral information may be a moderately valid indicator of reliability (i.e., publication in a peer-reviewed journal), others (the speaker’s presentation skills) are not.

The reliance of jurors on the expert’s presentation is suggested by a study of the impact of presenting expert evidence in person and via a “read” only. The jurors rated the evidence they heard presented by the expert as more credible and comprehensible than that they heard their evidence read verbatim by a lawyer.61

Jurors appear to rely more heavily on peripheral factors such as the expert’s personal characteristics, their attitude62 and their credentials, when the evidence is too complex or

52 Blackwell 2007 at 230.

53 Blackwell 2007 at 260. Nor is there often any corroborative evidence in the form of eyewitnesses or many of the other factors, since sex abuse tends to be committed in secret with strong disincentives to disclosure.

54 Edmonds 2012 at 56; McQuiston–Surrett & Saks 2009 at 437 discussing probabilistic evidence note that “Fact finders usually hold mistaken assumptions about uniqueness.”

55 See eg reviews of the research literature by Sanders 2003 at 901-907; Ivkovi & Hans 2003 at 447; NAS Report 2009 at 236; McQuiston–Surrett & Saks 2009 at 437, 450-451.

56Joe Cecil et al “Comprehension of Difficult Issues: Lessons from Civil Jury Trials” (1991) 40 Am U L Rev 727, at 757 - 758; reviewed in Sanders 2003 at 907; Young et al. 1999 at [3.18(3)].

57 The NAS Report 2009 reviews literature at 185-189.

58 Margaret Kovera, Bradley McAuliff and Kellye Herbert “Reasoning about Scientific Evidence: The effects of juror gender and evidence quality on juror decisions in a hostile work environment case” (1999) 84 J Applied Psychology 362 [Kovera et al 1999].

59 McQuiston–Surrett & Saks 2009 at 437, 450-451; Ivkovi & Hans at 478 and Neil Vidmar “Are juries competent to decide liability in tort cases involving scientific/medical issues? Some data from medical malpractice” (1995) 43 Emory Law Journal 885 [Vidmar 1995]; ABA Report 1989, Sanders 1993, Joel Cooper & Issac Neuhaus “The ‘Hired Gun’ effect: assessing the effect of pay, frequency of testifying and credentials on the perception of expert testimony” (2000) 24 Law and Human Behaviour 149 [Cooper and Neuhaus 2000].

60Sanders 2003 at 909; Blackwell 2007 at 222-228.

61Ivkovi & Hans 2003 at 446, citing Daniel Jacoubovitch et al “Juror responses to direct and mediated presentations of expert testimony” (1977) 7 Journal of Applied Social Psychology 227.

62Selvin & Picus 1987 at 27; Young et al. 1999 at [3.21].

difficult for them. 63 They may also fall back on their prior understanding of an issue to decide the matter.64

However, jurors do use some more relevant peripheral factors appropriately where those factors are easily understood: Although they are not alive to the quality of research design they have been found to prefer evidence that has been published and research where the subjects were similar to the facts of the case (e.g., blue collar workers rather than university students).65

Blackwell found that New Zealand jurors (few of whom had seen experts testify) tended to rate peripheral factors highly and to prefer experiential expertise over the purely academic.66 Asked about the characteristics of a believable expert witness, 93% of jurors preferred experts with professional experience, while only 47% saw high academic qualifications as increasing an expert’s credibility. Seventy percent agreed that “being easy to understand makes an expert more believable.” Demeanour was also important: 85% said that the appearance of even- handedness increased credibility, while 58% agreed that highly confident experts were “more believable” and a third said“[g]ood eye contact with the jury makes an expert more believable.”67

Anecdotal evidence would also tend to support the idea that juries are swayed by peripheral factors. Studies of US lawyers show that they are convinced that jurors are heavily influenced by the witness’s presentational skills and appearance etc rather than by the strength of the actual evidence.68

Further, advice given to expert witnesses is underpinned by the same assumption, since it usually includes suggestions that they “dress smartly but not ostentatiously”69, and even comment that presentation is as important as actual expertise.70 They should seek to appear confident, use an engaging manner71 and give clear and simple explanations.72 They are warned that showing signs of emotion or argumentativeness might undermine credibility.73

It would be unfair to blame jurors (or experts) for their focus on personal presentation since the courts generally encourage jurors to rely on demeanour to decide veracity.74 They also emphasise its importance in their own decisions – this being also the reason that appellate courts are reluctant to overturn trial judges’ decisions based on witness assessments.75

However, demeanour is a poor pointer to veracity: Lay people (including judges, lawyers and police) have repeatedly been found to have only a chance probability of distinguishing accurate from inaccurate witnesses of fact using their demeanour.76 Often people believe, as discussed, that witness confidence is strongly correlated to accuracy.77 Yet confidence is very poorly

63 Sanders 2003 reviews literature at 909-912. Similar conclusions were drawn by Louise Ellison and Vanessa Munro in their recent study “Turning Mirrors into Windows?: Assessing the Impact of (Mock) Juror Education in Rape Trials” (2009) 49 BRITJC 363 at 378 [Ellison & Munro 2009].

64Ivkovi & Hans 2003 reviewing literature, citing Vidmar 1995 at 172.

65Kovera et al 1999 at 372; Sanders 20003 reviews literature at 912-913.

66Blackwell 2007 at 228.

67Blackwell 2007 at 222-223.

68Sanders 2003 at 913-914.

69Paul Newman “Giving a Performance” (2006) Feb CN 109 at 110 [Newman 2006].

70 Nicola Cunningham “Emergency physicians as expert witnesses: ‘From frontline wise to courtroom woes’” (2009) 21 Emergency Medicine Australasia 503, 506.

71Newman 2006 at 109.

72Newman 2006 at 110.

73Newman 2006 at 109-110; Leveson LJ 2009 at 2.

74Sanders 2003 at 922-923; Blackwell 2007 at 226 found all judges in her sample of nine child sex abuse cases emphasised witness demeanour. Similar findings have been made in studies in Australia: Blackwell 2007 reviews literature at 45.

75 See discussion in R v Munro [2007] NZCA 510 at [76] - [84] per Glazebrook J.

76Blackwell 2007 at 229 reviews literature; see also Andrew Roberts “Expert evidence on the reliability of eyewitness identification - some observations on the justifications for exclusion: Gage v HM Advocate” (2012) 16(1) E&P 93 at 98 [Roberts 2012].

77 Sanders 2003 at 922-923; Harney v Police [2011] NZSC 107 at [33]- [38].

correlated with accuracy.78 Until recently, the New Zealand Court of Appeal shared a similar belief. However, in its more recent decisions it explicitly demotes confidence as a factor in (judicial) decisions to whether to admit eye-witness and voice-identification evidence.79 Studies have also found that, in the specific context of sex assault cases, many jurors judge complainants accordingly to inaccurate beliefs about the way “real” victims would behave.80

Further, an expert’s demeanour may be artificially convincing since experienced or well-trained experts may have learnt to present particularly persuasively and lawyers deliberately select their experts for their presentation skills as well as their knowledge.81

The fact that juries prefer experts who explain the evidence simply82 and express firm opinions83 underlines their comprehension difficulties. Juries like clear guidance precisely because they struggle to understand the evidence themselves. One study even found that jurors believed they understood the evidence better when the expert gave a firm opinion on the ultimate issue.84 Unfortunately, jurors have been found to prefer simpler presentations even where those presentations were less accurate or even misleading.85

Studies have also found that where jurors cannot understand the expert or cannot decide between opposing experts they tend to simply ignore the evidence.86 One study also found that jurors ignored expert evidence which contradicted their strongly-held beliefs.87 On a more positive note, juries do appear able to take on board more straightforward expert evidence (e.g., addressing common misconceptions about rape complainants), provided it does not conflict too strongly with their prior beliefs.88 Despite the doubts about juries’ ability to comprehend evidence, the NAS concluded that jury decisions are generally justified and that overall the current research suggests judges and jurors have an equal capacity to understand scientific evidence.89 However, as the NAS was highly critical of judges’ abilities in this area (see below), this is not actually complimentary.

In contrast to the negative findings, jurors often report that they understood the evidence. In 13 of the 19 trials in Young et al..’s sample involving expert evidence no juror expressed any issue with comprehension.90 Similarly, Zander and Henderson found the vast majority of their huge sample believed they had understood the judges’ legal directions.91 There are, however, problems with any reliance on people’s self-assessment of their own understanding. Thomas studied 795 English jurors, finding that while a majority believed they had understood the judges’ directions easily, when the actual comprehension of a sample group was tested only a

78 Harney v Police [2011] NZSC 107 at [33]- [38]

79 Harney v Police [2011] NZSC 107 at [33]- [38]; R v Munro at [80] per Glazebrook J.

80 Blackwell 2007 reviews literature and her own findings at 201-202.

81 Sanders 2003 at 922-923; see also Ivkovi & Hans 2003.

82 See Ivkovi & Hans 2003 at 478; Vidmar 1995; ABA Report 1989, Sanders 1993 at 62, Cooper & Neuhaus 2000; Anthony Champagne, Daniel Shuman and Elizabeth Whitaker “Expert Witness in the Courts: An Empirical Examination” (1992) 76 Judicature 5 [Champagne et al 1992]; Daniel Shuman et al “An Empirical Examination of the Use of Expert Witnesses in the Courts - Part 2: A Three City Study” (1994) 34 Jurimetrics Journal 193 [Shuman et al 1994]; Young et al. 1999 at [3.14].

83McQuiston–Surrett & Saks 2009 at 438-439 citing Gary Wells “Naked statistical evidence of liability: Is subjective probability enough? (1992) 62 Journal of Personality and Social Psychology 739; Kovera et al 2002 reviewing research literature.

84 McQuiston-Surrett & Saks 2009 at 450-451.

85 McQuiston-Surrett & Saks 2009 at 450.

86 Sanders 1993 at 62; Sanders 2003 at 901, 908-909; Joel Cooper, Elizabeth Bennett and Holly Sukel “Complex scientific testimony: How to jurors make decisions?” (1996) 20 Law and Human Behaviour 379; Young et al. 1999 at [3.13(2)]; MacDonald & Tinsley 2011 at 369-370, who recommend that parties use an agreed statement of expert evidence as much as possible to avoid juries discounting evidence they suspect is biased because it is produced by one side only.

87 Ellison & Munro 2009.

88 Ellison & Munro 2009.

89 NAS Report 2009 at 236.

90 Young et al. 1999 at [3.14-3.15].

91 Cited in Thomas 2010 at 3.

minority (31%) had understood fully.92 Comprehension improved to 48% amongst jurors who were given written directions.93

Still, jurors together are possibly stronger than jurors individually. Studies often rely on individual answers rather than group responses. Young et al.. concluded that although a minority of jurors had difficulty understanding expert evidence, other jurors were able to help them.94 Further research on the sufficiency of jury decision-making is required to identify whether this is correct, or whether the limitations of the few in fact undermine the many. Nevertheless, the research overall reveals serious reasons to question jurors’ ability to evaluate expert evidence and to come to appropriate conclusions.

Will the expert usurp the jury’s role?

One of the oldest and strongest of the courts’ concerns about expert evidence is that jurors will be overwhelmed by the expert’s authority and charisma and accept his or her opinion unquestioningly. This is known as the risk that the expert will usurp the jury’s role in decision- making, 95 or the “risk of unjustified deference”.96 This is a different issue to whether juries are competent to assess experts: The idea here is that the juries will not even attempt (however poorly) to assess the evidence independently. The fear of usurpation is the reason the court traditionally warns juries against relying too heavily on expert witnesses.97

Experts are impressive people and all will be impressed by the solemnity with which they explain their expertise and their conclusions. Juries will need to be warned.98

If the rules of evidence restricting the admission of expert evidence in part reflect the courts’ perception that the jury is not competent to evaluate expert evidence, they can also be seen as reflecting a concern about usurpation as well. The court is concerned to limit the jury’s exposure to witnesses likely to undermine its independence and to ensure that any material to which they must be exposed is reasonably reliable. Another, the “ultimate issue” rule (abolished in New Zealand), is a very direct expression of that fear, preventing experts giving too clear a lead and thus reducing the scope for undue influence.

However, the research on juries suggests that jurors are not generally overwhelmed by experts.99 First, the discussion above shows that jurors do consider multiple aspects of the expert’s evidence beyond his or her credentials.100 Even where juries find the evidence confusing they do not simply accept the expert’s word. They will attempt to use various assessment methods or they may simply ignore it. The “peripheral” factors they tend to rely upon are not necessarily appropriate, but they are at least evidence that juries do not simply follow experts.

Second, juries are often highly sceptical of experts. Several US studies have found that juries react particularly badly to highly-paid or experienced witnesses, seeing them as “hired guns”.101 They are also very sensitive to any indication of a relationship between the expert and a party.102 And as noted already, there is also evidence that juries may ignore expert evidence

92Thomas 2010 at 39.

93Thomas 2010 at 38.

94 Young et al. 1999 at [3.15]; New Zealand Law Commission Juries in Criminal Trials (NZLC R69, 2001) at [372] [NZLC Report 2001].

95 EWLC Report 2011 at [1.15] - [1.16]; Ward 2009 85-86, 91; Ring 2012 at 79-80; MacDonald & Tinsley 2011 at 365-

366.

96 Eg Ward 2009 at 91; see also R v Gardner; Leveson LJ 2009 at 6; Ring 2012.

97 Eg R v Gardner.

98 Leveson LJ 2009 at 6, citing R v Gardner at [53] per Waller LJ.

99 NZLC Report 2001 at [372]; New Zealand Law Commission Evidence - Reform of the Law (NZLC R55v1, 1999) [NZLC Report 1999]; Sanders 2003 reviews studies at 908; Young et al. 1999 at [3.17].

100 For example see Ivkovi & Hans’ 2009 study of 256 real jurors’ reactions to economic and medical experts at 479.

101 ABA Report 1989; Sanders 1993; Ivkovi & Hans 2009 at 478.

102ABA Report 1989; Sanders 1993; Ivkovi & Hans 2009.

which contradicts their prior beliefs strongly.103 Overall, juries do not appear to be overwhelmed by experts’ authority. Rather, they retain their independence as decision-makers. The real issue remains their competence to fulfil that role.

The evidence that juries are often preoccupied with the possibility of certain types of bias in experts is also relevant to relieve commentators’ and courts’ concerns, discussed above, that jurors may overlook bias. Some even comment that juries may be overly sceptical of experts.104 However, the research also shows that juries are not equipped to recognise other relevant types of bias, such as bias in research design.

In conclusion, it appears there are cogent reasons to fear juries struggle to comprehend and evaluate scientific evidence.

2.2.2 Judicial Competence

Many commentators assume judges are better at assessing expert evidence than jurors.106 If so, then, since jury trials account for only a very small percentage of trials and all Family Court cases are heard by judge alone, expert evidence would present far less of a problem.

However, there are also wide-spread concerns across common law jurisdictions that many judges are not equipped to assess expert evidence themselves or to act as gatekeepers for vulnerable juries.107 It has been said repeatedly that many questions now coming before courts are so complex that they are “quite beyond the capacity of most judges to understand, let alone decide, at least without considerable assistance.”108

It is sometimes suggested that because judges are aware expert witnesses are sometimes experienced performers109 they may be less likely to be overwhelmed by charisma than jurors. However, a senior Australian judge argues that “the judge is as likely to be persuaded by the more articulate and persuasive personality as by his or her own rational analysis of the conflicting opinions.”110

It is also suggested that that there is a judicial “culture of acceptance” of expert evidence in the US and England and Wales,111 so that expert evidence is rarely rejected112 and judges seem reluctant to insist that best or even standard practice is followed.113 The NAS has suggested that

103 Ellison & Munro 2009 at 374-375; Kovera et al 2002 at 197. Cf Blackwell 2007 at 204 - 205 and Ellison & Munro

2009 at 374 - 375 discussing prior research.

104 Shuman et al 1994; Rares 2012 at 31

105 Ronald Melnick (2005) "A Daubert Motion: A Legal Strategy to Exclude Essential Scientific Evidence in Toxic Tort Litigation" (2005) 95(S1) American Journal of Public Health S30 at S30.

106 See Ivkovi & Hans 2003 reviewing literature at 445, 479-480 citing Champagne et al 1992; Daniel Shuman and Anthony Champagne “Removing the People from the Legal Process: The Rhetoric and Research on Judicial Selection and Juries” (1997) 3 Psychology, Public Policy and the Law 242; Shuman et al 1994; Shuman, Champagne and Whitaker (a) “Assessing the Believability of Expert Witnesses: Science in the Jurybox” (1996) 37 Jurimetrics Journal 23 and (b) “Juror Assessments of the Believability of Expert Witnesses: A literature Review” (1996) 36 Jurimetrics Journal 371; Chesler, Sanders and Kalmuss Social Science in Court: Mobilizing Experts in the School Desegregation Cases (University of Wisconsin Press, Madison, 1988).

107 For the US see the NAS Report 2009; for Australia see for example Davies 2004 at 370, 368; for England see Alldridge 1992 at 695; Edmond 2012 at 43, 63.

108 Davies 2004 at 370; some EWLC consultees also believed that judges aren’t equipped to assess reliability: EWLC Report 2011 at [3.20].

109 Sanders 2003 at 923 makes this point, citing other commentators.

110Davies 2004 at 370.

111 EWLC Report 2011 at [1.17]; Ward 2009 at 92.

112 EWLC Report 2011 at [3.40]; Edmond 2012 at 30; Welner 2012 2; NAS Report 2009.

113 Welner 2012 at 2.

courts are unlikely to critique expert evidence to the extent required because to do so would acknowledge problems with forensic sciences the court has relied upon for many years.114

Empirical research on judicial competence

There are some empirical studies of US judges’ comprehension of expert evidence. Overall, it has been found that judges are no better than jurors.

Most studies that have compared the fact-finding and decision-making of judges to that of jurors have found no differences. These studies have included the ability to disregard inadmissible evidence, to avoid taking cognitive shortcuts (heuristics) that lead to errors, to draw inferences from probabilistic evidence, to analyse the substance of scientific evidence (central processing) rather than focusing on superficial aspects of the expert (peripheral processing), to distinguish features that make research sound of unsound etc. In all of these, judges have been found to perform very much like the jurors.115

The only real differences between judges and jurors’ assessment appear to be that some judges are slightly less confident of their own understanding of the evidence116 and less swayed by experts expressing firm opinions.117 However, it has been argued that while judges and jurors make the same mistakes, judges’ experience and education can assist to overcome some common errors.118

One of the primary proofs in the case against judicial competence are studies of the way in which US judges have applied their admissibility test, known as the Daubert standard. These studies suggest that “judges may be unable to determine what factors are important in assessing scientific reliability, particularly when research is the basis for an expert opinion.”119 Consequently, several commentators have concluded that US courts are not able to apply Daubert properly.120

Daubert v Merrell Dow Pharmaceuticals121 replaced the previous test in Frye v US.122 Whereas Frye emphasised the acceptance of the expert’s general theory, methodology and procedures by the scientific community, Daubert required judges to assess the validity of the evidence themselves, setting out a non-exclusive list of five factors to consider. The factors were whether the reliability of the underlying theory or technique could be tested objectively, whether it had been peer reviewed and published, the known or potential error rate, the existence and maintenance of standards and controls, and the acceptance of the theory or technique by the scientific community.123 Several studies followed, testing judges’ understanding of the new

114 NAS Report 2009 at 110.

115 McQuiston-Surrett & Saks 2009 at 440, 450-451; cf Young et al. 1999 at [9.3] in which judges agreed with jurors in only 24 of 48 cases and in a further 11 verdicts while the jury’s verdicts were supportable on the evidence the judge did not agree with them. See also MacDonald & Tinsley 2011 reviewing research at 229-233, 241-243.

116 McQuiston-Surrett & Saks 2009 at 450-451.

117 McQuiston-Surrett & Saks 2009 at 450.

118 MacDonald & Tinsley 2011 at 242: see discussion of judicial education in “Reform” section below.

119 Edmond 2012 at 45.

120 Ring 2012 at 85-88; Edmond 2012 at 45.

121 Daubert v Merrell Dow Pharmaceuticals [1993] USSC 99; 509 US 579 (1993) [Daubert].

122 Frye v US 293 F 1013 (CADC 1923).

123 In 2000 Rule 702 of the Federal Rules of Evidence was updated to incorporate the Daubert test, refined as it had been in a number of subsequent decisions (especially General Electric Co. v Joiner [1997] USSC 88; 522 US 136 (1997) and Kumho Tire Co v Carmichael [1999] USSC 19; 526 US 137 (1999)). It was updated again in 2011 as follows: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) The testimony is based on sufficient facts or data; (c) The testimony is the product of reliable principles and methods; and (d) The expert has reliably applied the principles and methods to the facts of the case.” (US Federal Rules of Evidence, Rule 702: Testimony by Expert Witnesses, amended Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011).

standards (but not of the quality of their actual decision-making). The studies support the critics’ contentions that judges are often not competent to assess expert evidence.

Research suggests judges have difficulties with understanding the scientific concepts relevant to assessing expert evidence (such as “falsifiability” and “error rate”),124 and are not conscious of methodological problems with research studies.125 Legal training regarding the rules of expert evidence is insufficient to enable judges to grasp the necessary concepts,126 and training on scientific method may need to be quite extensive before it improves judicial decision-making.127 Moreover, judges “are . . . susceptible to the usual cognitive biases that afflict most people,”128 and almost equally influenced by peripheral factors as jurors.129

Judges, like some US jurors, have also been found to emphasise the risk of bias amongst expert witnesses. One study of US federal judges found that bias was their biggest concern in their dealings with expert witnesses.130 Similarly, a study of Australian judges found that 35% considered bias the most significant problem with expert witnesses.131 However, their difficulties in recognising methodological flaws in research suggests they may struggle to detect more subtle biases in research design.

Overall, the US and Australian research gives reason to be concerned that not only jurors but judges have difficulty in assessing some expert evidence. More research is needed to verify whether this research applies to New Zealand judges.

The next section considers whether the adversarial trial’s inbuilt systems might guard sufficiently against any lapses in the competence in the fact finders.

2.3 Traditional Adversarial Safeguards

Lawyers and judges are fond of arguing that the traditional safeguards of the adversarial system

- challenge by opposing counsel via cross-examination of the offending expert, the calling of opposing expert evidence, and judicial directions to the jury - are capable of addressing any issues with expert evidence admitted into the court, and of safeguarding the trial system against improper or incompetent expert evidence. In the words of the US Supreme Court in Daubert:

Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.132

However, a number of critics have taken issue with the efficacy of these safeguards and empirical evidence suggests that the critics are correct in some respects.

2.3.1 Jury directions insufficient

The criminal courts often assume that judicial directions can overcome all manner of issues which arise during a trial. However, some critics argue that there is little evidence they work

124 Sophia Gatowski et al “Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post- Daubert World” (2001) 25 Law & Hum Behav 433 [Gatowski 2001], discussed in Sanders 2003 at 926.

125 Margaret Kovera and Bradley McAuliff “The Effects of Peer Review and Evidence Quality on Judge Evaluations of Psychological Science: Are Judges Effective Gatekeepers (2000) 85 J Applied Psych 574 [Kovera & McAuliff 2000], also discussed in Kovera et al 2002 at 186-187; see also Sanders’ review 2003 at 926 - 928; NAS Report 2009 at 185-

189; Edmond 2012 at 56.

126 Gatowski 2001; discussed in Sanders 2003 at 926.

127 Kovera et al 2002 at 187 discussing Kovera & McAuliff 2000; see also Sanders’ 2003 review at 926-928.

128 Jeffrey Guthrie et al “Inside the Judicial Mind” (2001) 85 Cornell Law Rev 777, discussed in Sanders 2003 at 925 - 926.

129 Kovera et al 2002 at 185, citing Shuman et al 1994; see also Edmond 2012 at 41; Sanders 2003 at 926.

130 Sanders 2003 at 919 citing Krafta et al 2002.

131 Rares 2012 at 31.

132 Daubert at 596. See also the English Court of Appeal’s equivalent declaration R v Atkins [2009] EWCA Crim 1876; [2010] 1 Cr App R 8 at [27].

and the manner in which they are typically given is too difficult for juries to apply and too general to be of any real use.133

As noted above, Young et al.’s study found some jurors misunderstood significant aspects of judges’ opening remarks and closing directions,134 such as the direction to make their decision solely on evidence before the court.135 They also interpreted standard warnings or advice judges routinely give in all trials as being specific instructions regarding the cases before them.136 Similarly, Thomas found that only 31% of her sample of English jurors understood oral judicial directions as to the law, although their understanding increased to 48% with written directions.137

Judicial directions may also be ignored. Researchers have found that directions on lies appear to make little or no difference to jurors138 and nor do directions that they can rely on inferences from circumstantial evidence, where jurors strongly desired direct or “hard evidence”.139 Some of Young et al.’s sample ignored directions they found boring.140 Studies also suggest that both juries141 and judges142 may have difficulty ignoring inadmissible evidence or irrelevant factors.

Blackwell found that many judges did not even give the statutorily authorised directions aimed at reducing misconceptions in child sex cases, including those on corroboration and delayed disclosure,143 even when they appeared relevant.144

There have been calls for judges to provide better and more extensive directions, including giving written versions.145 It should be noted that since Young et al. the New Zealand judiciary has adopted simplified directions and “question-trees” which guide jurors in their determinations. Whether these measures are sufficient to address the above concerns is as yet unknown.

2.3.2 Opposing parties’ challenge

The other major trial safeguard against poor expert evidence is the challenge mounted by opposing counsel via cross-examination and the deployment of opposing experts.

Underfunded defence challenge

However, the US experience in the aftermath of Daubert suggests defence counsel at least cannot be relied on to challenge experts sufficiently. Studies found that while there were many more challenges to expert evidence in civil cases following Daubert, in the criminal court very little changed.

Unlike the extremely well-litigated civil challenges, the criminal defendant’s challenge is usually perfunctory.146

133 Edmond 2012 at 51; MacDonald & Tinsley 2011 at 237 - 239, 371 - 372.

134 Young et al. 1999 at [2.45].

135 Young et al. 1999 at [7.41] - [7.45].

136 E.g.: Alan Reifman et al “Real jurors’ understanding of the law in real cases” (1992) 16 Law & Hum Behav 539: see discussion in Kovera et al 2002 at 196.

137 Thomas 2010 at 38 - 39.

138 Young et al. 1999 at [7.34].

139 Young et al. 1999 at [3.25].

140 Young et al. 1999 at [7.4], [7.26].

141 Edmond 2010 reviews studies at 52. Cf Young et al. 1999 at [7.57] who found that juries did try to ignore pre-trial publicity.

142 McQuiston-Surrett & Saks 2009.

143 Blackwell 2007 at 225 - 226.

144 Blackwell 2007 at 229, 257.

145 Auld Report 2001 at [22]; Young et al. 1999; NZLC Report 2001; NAS Report 2009; EWLC Report 2011; Thomas

2010.

146 Peter Neufeld “The (near) irrelevance of Daubert to criminal justice: And some suggestions for reform” (2005) 95 American Journal of Public Health 107 at 110 [Neufeld 2005], and also cited with approval by NAS Report 2009 at

This was largely attributed to underfunding of defence counsel, restricting counsel’s ability to research the issues and instruct alternative experts. Accordingly, even when defence counsel disputed expert evidence, their challenges tended to be weak, and the courts continued to admit most evidence.

Even when the most vulnerable forensic sciences—hair microscopy, bite marks, and handwriting—are attacked, the courts routinely affirm admissibility citing earlier decisions rather than facts established at a hearing. Defense lawyers generally fail to build a challenge with appropriate witnesses and new data. Thus, even if inclined to mount a Daubert challenge, they lack the requisite knowledge and skills, as well as the funds, to succeed.147

That underfunding reduces counsels’ effectiveness in challenging expert evidence is relevant to the New Zealand situation, given recent reductions in legal aid.

The English Law Commission has noted concerns that raising admissibility standards requires more court time and increases counsels’ and experts’ costs.148 Cost is often a concern where expert evidence is discussed.149 However, as the Law Commission itself retorted, some increased cost is worthwhile if the courts are saved from admitting flawed expert evidence.150

Lawyers’ comprehension of expert evidence

Lack of funding is not the only issue undermining the traditional safeguards. The bringing of a challenge to the admissibility of expert evidence, the effectiveness of cross-examination and the appointment of an opposing expert all depend upon the lawyers’ competence to recognise that the evidence is flawed and why.

There is less research about lawyers’ competence than about that of jurors and judges, however, it is not unreasonable to suspect that lawyers may suffer similar problems to those of jurors and judges, since judges in our system begin as lawyers. A number of commentators have certainly expressed doubts about some lawyers’ competence.151

Specific research on US lawyers supports that conclusion. Research found lawyers were unable to distinguish between the flawed and good studies except that they gave credence to evidence of the study’s acceptance by the scientific community, a marker easily grasped by non-scientists. Almost all the lawyers’ decisions as to whether they would have challenged the evidence depended not upon the quality of the studies but on whether they had a general practice of challenging expert evidence.152

Another source of information about lawyers’ competence is expert witnesses themselves. The UK Register of Expert Witnesses told the Law Commission of England and Wales that its members felt cross-examination was often weak.153 UK experts are recorded as complaining that barristers are often themselves unprepared and fail to prepare the experts for giving evidence. The experts found the lawyers’ conduct “extraordinary” and “quite stunning”.154

More generally, lawyers come under criticism for failing to explain matters to the jury comprehensibly and for failing to ensure their experts were clear. Young and Tinsley said:

[106] - [107]; see also Lloyd Dixon and Brian Gill Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision RAND Institute for Civil Justice 2001.

147 Neufeld 2005 at 110, and also cited with approval by NAS Report 2009 at 106 - 107.

148 EWLC Report 2011 at [3.14] -[3.32].

149 Davies 2004 at 368, 371.

150 EWLC Report at [3.14] - 3.32], [6.44] - [6.50], [6.67].

151 See eg NAS Report 2009; Edmond 2012 at 50; Davies 2004 at 368.

152 Kovera et al 2002 at 188 - 189, reviewing their own work, Margaret Kovera and Bradley McAuliff “Attorneys’ evaluations of psychological science: Does evidence quality matter?” (Manuscript submitted for publication, 2002). 153 EWLC Report 2011 at [1.21]; Edmond 2012 at 50.

154 Newman 2006 at 109.

[O]ur own assessment of the evidence in trials where jurors reported problems suggests that their problems were frequently caused, or at least exacerbated, by the unduly complicated and sometimes ponderous way in which the evidence was delivered. A number of experts presented their evidence in dry technical language, without adequate explanation of jargon or the use of clear diagrams or other visual aids. Thus jurors struggled to concentrate upon and take in the evidence, and sometimes failed to follow the explanations that were provided.155

Both the NAS and the Law Commission of England and Wales (“the EWLC”) have put responsibility for ensuring juror comprehension on lawyers.156

The effectiveness of cross-examination

Cross-examination is seen as particularly important within the adversarial system because it is the main opportunity to investigate expert evidence. Most lawyers and judges regard cross- examination very highly. 157 They believe that:

[E]very time a forensic scientist steps into a courtroom, his work is vigorously peer reviewed and scrutinized by opposing counsel. A forensic scientist might occasionally make an error in the crime laboratory, but the crucible of courtroom cross-examination would expose it at trial. 158

However, some argue that in the case of expert evidence the ““crucible” . . . turned out to be utterly ineffective.”159 Empirical research supports this position, suggesting that cross- examination is “far less effective than thought.”160

There are a number of empirical studies of the impact of the cross-examination of experts on jurors. Researchers usually have several groups of mock jurors watch experts give their evidence and then be cross-examined, varying the quality of the expert’s evidence, their confidence under questioning and the quality of the cross. The results are startling. The studies have found that cross-examination has very little impact on the fact-finders’ evaluation of experts, even where the cross-examination is strong and scientifically valid.

Generally, these studies have found little or no ability of cross-examination to undo the effects of an expert’s testimony on direct examination, even if the direct testimony is fraught with weaknesses and the cross is well designed to expose those weaknesses.161

However, paralleling findings that juries rely on the experts’ demeanour to evaluate him or her in examination-in-chief, an expert’s behaviour under cross-examination may impact upon the jury’s opinion. In one study, the jury’s view of an expert worsened after the expert made a number of “highly prejudicial” concessions under cross-examination.162 Thus, cross- examination may be successful (or impactful) only when it wrings clear concessions from the expert.

Moreover, whereas supporters of the current system also rely upon the ability of counsel to call other experts to critique questionable expert evidence, numerous studies have found that even

155 Young et al. 1999 at [3.15].

156 NZLC Report 2001 at [372]; NAS Report 2009 at 236; EWLC Report 1999. However, other researchers have commented that it is well established that people are frequently poor at estimating their own comprehension.

157 Eg Daubert at 596 and R v Atkins at [27]; see also discussion in Ivkovi & Hans 2003 at 480.

158 Neufeld 2005 at 110, and also cited with approval by NAS Report 2009 at 106 - 107. See also R v Atkins at [29].

159 Neufeld, 110, and also cited with approval by NAS Report 2009, 106-7.

160 Edmond 2012 at 50.

161 McQuiston-Surrett & Saks 2009 at 439; Kovera et al 2002 at 196 citing Brian Cutler and Steven Penrod Mistaken identification: The eyewitness, psychology, and the law (Cambridge University Press, New York, 1995) [Cutler & Penrod 1995]; Kovera et al 1999 at 362, 372; Margaret Kovera, Robert Levy, Eugene Borgida and Steven Penrod “Expert Testimony in Child Sexual Abuse Cases: Effects of Expert Evidence Type and Cross-examination” (1994) 18 Law & Hum Behav 653 [Kovera et al 1994]; Ellison & Munro 2009 at 375.

162 Ellison & Munro 2009 at 375.

when the cross-examiner has support for the challenge from his or her own expert there is little or no impact on the jury’s opinion of the original expert.163

Additionally, some commentators argue that some expert evidence might be said to be unverifiable by even the best testing. “Connoisseur experts” whose expertise is based on training and experience rather than any testable scientific method (e.g., a perfumer’s identification of a scent present at the crime scene, a psychiatric diagnosis, or expert evidence based on theories such as Recovered Memory Syndrome164) is very difficult to assess, since the only source is the expert’s own experience, and comparison with another experiential expert is of little significance.165 Interestingly, as discussed above, empirical evidence suggests that juries respond better to experiential experts than to the actuarial sort.

Defence complexity and the prosecution advantage

Some commentators argue that the accused is already disadvantaged in challenging expert evidence because defence cross-examination usually revolves around highly sophisticated methodological critiques, which the jury is even more likely to misunderstand than they are to misunderstand the expert’s examination-in-chief.166

Further, juries may prefer the prosecution evidence because it is generally presented more comprehensibly. Jurors are said to evaluate evidence by constructing competing narratives for each side, the winner being the most convincing story-teller.167 Prosecution expert evidence is generally more tightly woven into a narrative, supported by other “corroborative” evidence.168 Conversely, defence expert evidence and the defence case are often purely rebuttal and critique. Defence experts generally do not offer their own studies or positive evidence to build an alternative narrative.169 Young et al.. found jurors tend to dislike a purely rebuttal-based defence case:

[J]urors who responded negatively to the defence tended to describe counsel as disorganised, asking the wrong questions, reacting to the Crown case rather than developing a positive case of their own, failing to produce a coherent story, chasing irrelevancies or simply “nit-picking” at the prosecution evidence. Some jurors, albeit only a minority, recognised that the nature of defence counsel’s job meant that it was often difficult to avoid being seen in this way.170

Misrepresenting the evidence

Some argue that even an effective cross-examination by conventional legal standards may unfairly misrepresent the evidence and is an unfit technique for testing experts. There is evidence that many experts across the common law world today find cross-examination frustrating and misleading. They can feel “artificially constrained by having to answer questions that may be misconceived or misunderstand their evidence,”171 concluding, that cross- examination is designed to “twist or discredit their views, or by subtle shifts in questions, to

163 McQuiston–Surrett & Saks 2009 at 439 - 440 summarise the research in 2009 citing Shari Diamond, Jonathan Casper, Cami Heiert and Anna-Maria Marshall “Juror Reactions to Attorneys at Trial” (1996) 87 Journal of Criminal Law and Criminology 17; Kovera et al 1994; Kovera et al 1999; Kovera et al 2002 at 196, citing Cutler & Penrod 1995; Sanders 2003 at 930 - 937; Lora Levett and Margaret Kovera “The effectiveness of opposing expert witnesses for educating jurors about unreliable expert evidence” (2008) 32 Law & Hum Behav 363 cited in McQuiston-Surrett & Saks 2009 at 439; cf possible distorting impact of the subject of the expert evidence: discussed in Sanders 2003 at 936-37.

164 Ring 2012 at 85 - 86.

165 Bernstein 2008; Ring 2012.

166 Edmond 2012 at 50; EWLC Report 2011 at [1.20].

167 MacDonald & Tinsley 2011 at 226 - 229 review literature.

168Edmond 2012 at 50, 56-57; Ring 2012 at 85-88.

169 Blackwell 2007 at 56-57; Young et al. 1999 at [3.13(3)]; EWLC Report 2011 at [1.20]; Edmond 2012 at 50.

170 Young et al. 1999 at [5.10].

171 Rares 2012 at 31; Blackwell in Seymour, Blackwell & Thorburn 2011 at 10 criticises lawyers who “attempt to control” experts by restricting them to yes or no answers.

force them to a position that they do not regard as realistic or accurate.”172 Experts can feel their evidence is not respected or assessed appropriately.173

In an anecdotal collection of UK experts’ comments, a number described the humiliation and surprise they felt during cross-examination:

I was humiliated, embarrassed, undermined. I did not feel that I had any credibility left at all.

I have never before found myself in a situation where I had the information in my head and someone is making sure it doesn’t come out.174

DSAC’s 2012 submission to the NZLC’s current consultation process indicates its members believe that the criminal trial overall not productive of best evidence:

The adversary method is counter-productive to effective expert witness evidence. Doctors often feel like they are on trial and are intimidated by the trial process. [. . .] It is a common experience for expert witnesses to find that issues have not been clarified but become more confused.175

Criticism of the cross-examination of experts is not a recent phenomenon. Even Wigmore, the prominent early 20th century American legal academic most frequently cited for his praise of cross-examination, was sympathetic to experts’ dislike thereof. He acknowledged the trauma caused experts by cross-examination and their consequential contempt for the adversarial system as an investigative method.176

Many of the experts’ criticisms have their roots in quite conventional cross-examination theory and technique. Conventionally, cross-examiners general aim is to control the witness so that the witness can only give evidence favourable to the cross-examiner, regardless of whether that evidence is out of context, or whether the overall impression given is unrepresentative.177 Manuals and articles advising lawyers on how to cross-examine experts frequently explain how to conceal or misrepresent unfavourable or qualifying information.178 In one typical article, counsel are advised to limit cross-examination if it looks likely to elicit unfavourable evidence: “[T]he advocate should be astute to minimise the witness’s opportunity to repeat his unfavourable evidence.”179 That this approach can be effective to conceal relevant evidence from the fact-finders is underlined by the following advice to lawyers, explicitly contrasting the lawyers’ aim of concealment with the fact-finders’ interest in making “the right decision”:

If the witness is good or the merits are on the witness’s side – and worst still, both – cross-examination can easily lend weight to the witness’s case, not to the advocate’s. A good cross-examiner will recognise this and keep his questions to the absolute

172 Rares 2012 at 31.

173 Rares 2012 at 31.

174 Newman 2006 at 109, quoting an article in the Independent.

175 DSAC 2012.

176 Rares 2012 at 32. See also the UK lawyer Shilston 1992 at 255 - 256: “[V]ery great men in their profession acting as expert witnesses were often made fools of. They were completely demolished and reduced to the lowest common denominator, through cross-examination. I recall an anecdote about a very dominant senior partner from one of

our largest civil engineering consultancies being in a state of considerable distress just before giving evidence in an arbitration.”

177 Emily Henderson Cross-examination: A Critical Examination (PhD Thesis, Cambridge, 2001); Emily Henderson “Persuading and controlling: The theory of cross-examination in relation to children” in Helen Westcott, Graham Davies and Ray Bull Children’s Testimony: A Handbook of Psychological Research and Forensic Practice John Wiley & Sons Chichester 2002.

178 Welner 2012 at 27; Pamela Hobbs "You Must Say It For Him": Reformulating a Witness's Testimony on Cross- examination at Trial” (2003) 23 Text 477 [Hobbs 2003].

179 Lionel Read QC “The Benefit and Purpose of Cross-examination” (1997) 25 Journal of Planning and Environment Law 24 at 35 [Read 1997].

minimum necessary . . . The perspective of the inspector is different. A good cross- examination and a good witness are what he most needs to reach the right decision.180

Counsel are also advised that questions can be used rhetorically regardless of how the expert might rebut the criticism:

[I]t is often not the answer that matters but the question. The question puts the thought in the mind of the tribunal, and an unfavourable answer may often not much matter.181

The expert’s reputation is subject to similar treatment. For example, one article advises advocates as to how to inflate the significance of minor breaches of professional standards into a serious criticism of the expert’s ethics:

[T]he transgression for which a psychologist was sanctioned may have been relatively minor. This will make little difference, however, in the hands of a skilful cross-examiner, who invites witnesses to characterize themselves as “experts” and encourages them to extol the virtues of objective “standards” [of] forensic practice, before springing the trap with disclosure of a verified board complaint.182

Thus one writer concluded that the experts’ best remedy was to accept that cross-examiners will attempt to manipulate them:

The moral is simple: You should never trust the cross-examining barrister. Rather than trying to elicit useful information and allow the court the benefit of your expertise, the barrister will always try to make sure that you do not get his chance to put your case across.183

However, this approach very much leaves it to the ingenuity of the expert to outsmart the cross- examiner. Whether an expert is able to manage the cross-examination is another matter.

Empirical evidence on cross-examination as an investigative technique

There is very little empirical research on whether cross-examination is unfair to experts, creating a misleading impression of their evidence.

American lawyer and linguist, Pamela Hobbs analysed cross-examinations of medical expert witnesses in US civil trials. While her purpose was to demonstrate that lawyers use cross- examination questions as part of their exposition of the case,184 her analysis contains numerous examples of a lawyer successfully manipulating an expert through standard cross-examination tactics. For example, Hobbs shows a cross-examiner preventing an expert from giving information,185 and the same lawyer manipulating his witness into appearing to contradict his earlier evidence.186

Another more recent study by Ellison and Munro addresses the impact of cross-examination on the accuracy and completeness of the evidence of ordinary adult witnesses. They found that the adults’ evidence diminished in accuracy under cross-examination, with the witnesses making more errors of both omission and commission than they had done in evidence in chief.

In addition, the criticisms made by experts about cross-examination have unlikely parallels in the concerns expressed about the cross-examination of child witnesses. Over the last thirty years a considerable body of empirical research on the cross-examination of children has accumulated. The overwhelming consensus of this research is that the language and tactics of

180 Read 1997 at 37.

181 Read 1997 at 35.

182 Eric Drogin and Mark Howard “Jursprudent therapy: deriving optimal assistance from psychological science, practice, and roles (2001) 27 VTBJ 31 [Drogin & Howard].

183 Newman 2006 109

184 Pamela Hobbs “Tipping the Scales of Justice: Deconstructing an Expert’s Testimony on Cross-examination” (2002) 15 International Journal for the Semiotics of Law 411-24, 423, 505.

185 Hobbs 2003 at 485.

186 Hobbs 2003 at 503.

conventional cross-examination are likely to result in a misleading and negative impression of children’s accuracy and credibility.187 Moreover, cross-examination causes child witnesses considerable stress, further reducing their ability to recall information accurately.188 Consequently, it is now generally accepted amongst many common law countries including England and Wales,189 Australia,190 South Africa191 and New Zealand192 that conventional cross- examination is an inappropriate means of testing children’s evidence.

There is therefore some empirical evidence that cross-examination may give a misleading impression of the evidence of expert and ordinary adult witnesses. The extensive empirical evidence against cross-examination in relation to child witnesses is at least interesting as a comparison.

2.3.3 Traditional safeguards: Summary

The evidence is that the traditional safeguards of the adversarial trial may be insufficient protection against questionable expert evidence. First, judicial directions require to be made simpler if juries are to understand them. Second, relying on opposing counsel to test expert evidence is difficult. Counsel may not be able to evaluate the scientific research themselves in order to mount a successful challenge, and underfunding may reduce their ability to mount any challenge at all. Where defence challenge prosecution experts they may suffer particular disadvantages. Third, whereas courts traditionally rely on calling opposing experts, research suggests that juries’ opinions of an expert witness are generally not affected by an opposing experts’ critique. Fourth, the effectiveness of cross-examination as a means of challenging expert evidence, highly regarded as an investigative technique by many legal professionals, is questionable on a number of levels. It is likely to have very little impact on juries unless the examiner is able to elicit major concessions from the expert, yet cross-examiners do aim to elicit such concessions and are not concerned as to whether they reflect reality. There is also a small amount of empirical evidence (and a large amount of anecdotal evidence) that some cross- examiners succeed in manipulating experts into apparent concessions, and a small amount of empirical evidence that ordinary adult witnesses also become less accurate under cross- examination.

More research is needed to test whether experts’ (and ordinary adults’) evidence is generally distorted by cross-examination and the impact of that on the jury. However, overall, it appears the traditional safeguards are not reliable.

Some say that the appellate court’s ability to review the use of expert evidence in lower courts is hampered by the “highly deferential” standard of appellate review, yielding to the judgement of

187 Hanna et al “Child witnesses in the New Zealand Criminal Courts: A Review of Practice and Implications for Policy, Institute of Public Policy” (Auckland University of Technology, 2010) at 5, 54, see chpts 2 and 3. See also John Spencer & Rhona Flin The Evidence of Children: The Law and Psychology (Blackstone Press, London, 1993); Rachel Zajac. And P Cannan “Cross-examination of Sexual Assault Complainants: A Developmental Comparison” (2009) 16 Psychiatry, Psychology and the Law S36; Rachel Zajac and H Hayne “The Negative Effect of Cross-examination Style Questioning on Children’s Accuracy: Older Children are Not Immune” (2006) 20 Applied Cognitive Psychology 13; Rachel Zajac and H Hayne “I Don’t Think That’s What Really Happened: The Effect of Cross-Examination on the Accuracy of Children’s Reports” (2003) 9 Journal of Experimental Psychology 187.

188 Gail Goodman, Elizabeth Taub, David Jones, Patricia England, Linda Port, Leslie Rudy, et al. “Testifying in criminal court: Emotional effects on child sexual assault victims” (1992) 57 Monographs of the Society for Research in Child Development1.

189 Joyce Plotnikoff and Richard Woolfson, “Kicking and Screaming - the Slow Road to Best Evidence” in John Spencer and Michael Lamb (eds) Children and Cross-Examination: Time to Change the Rules? (Hart Publishing, Oxford, 2012) [Spencer & Lamb 2012] at 21 [Plotnikoff & Woolfson 2012] and Spencer Introduction in Spencer & Lamb 2012.

190 Hal Jackson “Children’s Evidence in Legal Proceedings - the position in Western Australia” in Spencer & Lamb 2012 at 75, Annie Cossins “Cross-Examining the Child Complainant: Rights, Innovations and Unfounded Fears in the Australian Context” in Spencer & Lamb 2012 at 95.

191 Emily Henderson “Alternative Routes: Accusatorial Jurisdictions on the Slow Road to Best Evidence” in Spencer & Lamb 2012 at 43 [Henderson 2012].

192 Emily Henderson “An Idea Whose Time has Come: The Reform of Criminal Procedure for Child Witnesses in New Zealand” in Spencer & Lamb 2012 at 113.

the judge at first instance.193 Accordingly, the EWLC recommended that appeals regarding expert evidence admissibility be de novo (or anew).194 Further, some argue that the case-by-case nature of judicial decision-making restricts the courts’ ability to police standards of expert evidence overall.195

2.4 Polarisation: The Distorting Effect of an Adversarial Presentation

Some critics argue that the adversarial process itself distorts expert evidence, polarising experts, concealing consensus and creating the appearance of controversy. It has been suggested that the “adversarial presentation of such questions by experts is likely to increase the risk of misunderstanding by judge or jury.”196

First, the bi-partite division of scientific issues is often artificial.

[T]he adversarial system tends to cause such questions to be presented to a court as a clear dichotomy between opposing views, whereas many such questions, including scientific ones, do not admit of resolution in that way. This polarisation of opinions which the adversarial system causes, may result in distortion of both the real question and the real answer.197

The answer may be distorted because the law does not allow for uncertainty, unlike science.

Many questions involving expertise including scientific ones, do not admit of any unequivocal answer, let alone one which necessarily favours one side rather than the other, yet that is what the adversarial system demands: One side or the other must be “right”.198

The partisan zeal with which the counsel presents their sides may further distort the scientific evidence. Many researchers and commentators note that in selecting experts advocates are motivated to select those who most support their positions. They are therefore likely to nominate extreme rather than mainstream experts, warping the picture of the spread of expert opinion.

[B]ecause the experts are chosen by the parties, the system favours the selection of experts with extreme views, rather than views that are representative of the scientific community.199

Fact-finders may be given the impression that there is more controversy over a given subject than is actually the case.

[L]aw often gets less of science than it could because adversarialism distorts the presentation of scientific evidence by allowing advocates to select evidence and present dishonest or marginal experts, even prolonging debates long settled in the scientific community.200

For example, Sanders studied jurors who had served on a civil trial regarding the link between an anti-nausea drug and birth defects. While the vast majority of experts believed there was no link, the jurors, who saw equal numbers of expert witnesses on each side, believed that the

193 NAS Report 2009 at 11.

194 Although see Edmond 2012 at 39, 52 criticising the EWLC for not going far enough.

195 NAS Report at 110.

196 Davies 2004 at 368

197 Davies 2004 at 367, 368-69.

198 Davies 2004 368.

199 Sanders 2003 at 921, see also at 937; Davies 2004 at 368, 369; Bernstein 2008 at 107; Cunningham 2009, 507.

200 Haack Susan “Inquiry and Advocacy, fallibism and finality: culture and itnerence in science and the law” (2003) 2

Law, Probability and Risk 205 at 208 [Haack 2003].

scientific community was evenly divided on the issue, or even that most scientists thought there was a link.201

Lawyers may also distort matters by preventing certain witnesses being called. It has been said that some Australian lawyers retain opposing experts to stop them being called by the opposition.202

Other aspects of the partisan presentation of expert evidence are sometimes said to be problematic. It is argued that the conventional process where experts give their evidence separately impedes comprehension. Because the evidence is presented separately and possibly after insufficient disclosure due to a partisan desire for secrecy, neither the parties nor their experts are necessarily fully aware of what is and is not disputed. It is argued that prosecution experts in particular, since they present first, are likely to give a large amount of information, attempting to address all possible questions, burying the real issues in irrelevant detail, and wasting time and money.203 Moreover, the delay between experts can cause problems for jurors struggling to recall complex information from the first expert during the evidence of the second.204

The adversarial system also restricts experts’ access to the rest of the evidence, which may have a detrimental effect on the quality of their conclusions and the completeness of their reports. Without access to the surrounding evidence, prosecution experts particularly may not realise that certain information they hold, or that certain qualifications of their evidence, are relevant. There may be, for example, information withheld from them which makes an unusual and usually discounted alternative interpretation of their evidence more plausible. Restrictions on the availability of other evidence also affects what tests or inquiries the expert deems necessary, and the extent to which they disclose information they hold, since they may not realise some of it is relevant without a fuller understanding of the case.205 Nor is it sufficient to rely upon the opposing expert to bring out these issues. The defence or opposing expert may have the additional information, but will not be in as good a position to undertake further testing. Under our system, experts “must remain in the dark on various points and be correspondingly less reliable.”206

Moreover, the rules of evidence can also heighten the difficulty of apprehending biased or incompetent experts. The rules against hearsay restrict the court’s access to collateral material including full disclosure of any peer review. Welner comments “[i]n this regard, the courts discourage diligence and set a lower bar for forensic psychiatry and psychology even the pressure of peer reviewers cannot overcome.” He then commented that unless the fact of a negative peer review will be disclosed in court it is unlikely to have any impact on the expert.207

Bias as a result of involvement in the adversarial system

The concern that experts may be biased and that fact-finders are not equipped to recognise it has already been discussed. This section discusses possible bias arising as the result of the expert’s involvement in the adversarial system, a phenomenon known as “adversarial bias”. It is widely said that bias is an “an almost inevitable consequence”208 of the appointment of experts

201 Sanders 2003 at 921 - 922, citing Joseph Sanders Bendectin on Trial (Michigan University Press, Michigan, 1998) at 130.

202 Davies 2004 at 370.

203 Rares 2012 at 31.

204 Rares 2012 at 31.

205 Gee 1987 at 308 - 309.

206 Gee 1987 at 309 - 310.

207 Welner 2012 at 27.

208 Davies 2004 at 368; Blackwell in Seymour, Blackwell & Thorburn 2011 at 129.

by partisans. Partisanship then complicates interactions between experts and is likely to make the process of critiquing one another or any joint conferencing adversarial and difficult.209

Several factors are seen as potentially leading to adversarial bias: First, the prospect of financial gain is seen as a corrupting influence. Commentators generally concur that significant monetary payment heightens the likelihood of bias developing.210 It is unknown the extent to which this sort of corruption might occur in New Zealand, although it seems unlikely that many expert witnesses derive significant income from their work, unless it is in the Family Court. However, one US expert witness, Moss, in what could be described as a confessional piece, describes his increasing preparedness to shape his evidence to advocate for one side or the other, regardless of his own conclusions about the merits of that position, because of the income he made as an expert.211

Experts may initially mould their opinions to the lawyer’s requirements in order to be appointed,212 and, once appointed, counsel encourage them to further adapt their evidence to fit counsel’s case.213 Experts are “encouraged to emphasise and expand on such of these aspects of his or her opinion as are likely to support the client’s version and to downplay or omit those aspects which do not.”214

There are less overt pressures also: One prominent US expert witness commented, “I have experienced the subtle pressures to join the team”.215 There is a “natural human tendency to feel the need to do your best for the side you represent,” even if unconsciously.216

There is some empirical evidence suggesting that even entirely disinterested witnesses (e.g., bystander witnesses to a fight between strangers) quickly become biased merely by being called by one side or the other, without any pressure being exerted.217 Some commentators argue that as expert witnesses are more likely to come to court with strong opinions about their subject, they may become biased more easily.218

Not only are witnesses recruited to a team but they are also subject to often rigorous challenge by the opposing side via cross-examination. Feeling under attack, experts may become defensive and aggressive, and take more extreme positions than they would otherwise adopt.

Permitting cross-examination on these opposing views is as likely to polarise them further as it is to eliminate or reduce areas of difference.219

This issue has also been recognised by the English Court of Appeal, who advised professional disciplinary bodies to be understanding of expert witnesses who make ill-considered comments in the heat of battle.220

2.5 Experts’ Reluctance to Testify

There is considerable literature suggesting expert witnesses dislike involvement with the courts. Any literature advising potential expert witnesses tends to include comments about how

209 Fred Seymour and Suzanne Blackwell “Psychologists working within the Family Court” in Seymour, Blackwell & Thorburn 2011 at 63, 83-84.

210 Davies 2004 at 369

211 Steven Moss “Review First Person: Opinion for sale. Confessions of an expert witness” appendix to Davies 2004 [Moss 2004].

212 Davies 2004 at 369;Moss 2004.

213 Davies 2004 at 369; Moss 2004; Blackwell in Seymour, Blackwell & Thorburn 2011 at 10. MacDonald & Tinsley

2011 at 234 - 241.

214 Davies 2004 at 369 - 370.

215 Professor J Langbein, the prominent American legal historian, cited in Davies 2004 at 369, see also Moss 2004.

216 Sanders 2003 at 917 - 919, Moss 2004, Gee 1987; Davies 2004 at 369, citing Langbein “I have experienced the subtle pressures to join the team”; Blackwell 2007.

217 Sanders 2003 at 918.

218 Sanders 2003 at 918.

219 Davies 2004 at 377.

220 See below: General Medical Council v Meadow [2006] EWCA 1390; [2007] QB 462 [GMC v Meadow].

stressful and unpleasant many find court. Being an expert witness is “mentally and physically gruelling. It is also stressful to think of your other work which may be left undone.”221 While some experts “grow to relish the new challenge,”222 the commentary frequently acknowledges that “[o]thers see it to have been a horrible mistake”223 and consequently avoid any repetition.

Another phenomenon related to individual experts’ dislike of court work is the backlash from medical expert witnesses against the courts in the aftermath of the UK child death cases in the early 2000’s. The public shaming and professional disciplining of experts in those cases met with a seriously hostile response from other experts, medical professionals in particular. The letters and editorial pages of medical journals contained frequent complaints about the treatment of experts by the courts and the courts’ competence to deal with expert evidence. There were widespread comments that the public spectacle of the treatment of the experts in the various cases meant doctors would be reluctant to come to court under the new regime.

Such was the level of protest that the English Court of Appeal felt it necessary to respond, commenting in judgments that they did not believe that responsible experts needed to fear disciplinary action, but at the same time cautioning professional bodies not to overreact to expert witnesses who were found to have made mistakes whilst giving evidence.

The Court of Appeal expressly recognised the strain cross-examination causes many expert witnesses in GMC v Meadow [2006] EWCA 1390. Auld LJ commented that when assessing the culpability of an expert witness accused of misconduct all the circumstances must be considered, including the emotional strain of testifying:

Not least . . . should be an appreciation of the isolation of an expert witness, however seasoned in the role, in the alien confines of the witness box in an adversarial contest over which the judge and the lawyers hold sway.224

Accordingly, Auld LJ went on to say the courts and tribunals must be compassionate to experts who make mistakes under such pressure.225

So far there is no evidence that English doctors or other professionals avoid court work more than previously. However, the authors are unaware of any empirical research in this area.226

Generally, there is very little research regarding expert witnesses’ court experiences. Cunningham et al.’s study of 17 Australian emergency department doctors regarding their experiences as expert witnesses supports the perception that medical experts find court difficult. The experts rated acting as a witness as the second most difficult of 10 non-technical skills required of emergency doctors.227 Consequently, 90% emphasised the need for training about the role of expert witness, although 75% had not had any such training.228 They rated as the most negative aspects of court work the time taken and cross-examination, with the authors noting that discussion of courtroom experiences generated “particularly emotive responses” from the doctors.229

  1. The Reform Options

The remainder of the literature review describes the main solutions proposed by commentators and others to repair the defects noted above. The options that have been advanced for

221 Newman 2006 at 110. This is one of the few mentions of the inconvenience of court for experts: see also Welner 2012 at 26.

222See also Moss 2004 who describes eventually enjoying the cut and thrust of cross-examination.

223 Newman 2006 at 109.

224 GMC v Meadow at [205] per Auld LJ.

225 GMC v Meadow at [207] per Auld LJ.

226 Although the Home Office is currently discussing commissioning research in the general area.

227 Nicola Cunningham and Tracey Weiland “Current level of training, experience and perceptions of emergency physicians as expert witnesses: A pilot study” (2009) 21 Emergency Medicine Australasia 497, 500.

228 Cunningham & Weiland 2009, 499-500.

229 Cunningham & Weiland 2009, 500.

reforming expert evidence to be discussed here break into two general groups – those that rely on lawyers to do the job and those that enlist scientists to help.

Proposals have also been made to raise the quality of the science from which expert evidence is drawn. The NAS in particular has concentrated on the need for better quality scientific training230 and governance for scientists and on increasing research to provide a more reliable empirical foundation for the forensic sciences.231

No one proposal has been advanced as a panacea on its own. Generally reformers envisage a package of measures which together will improve the situation.232

3.1 Arm the Lawyers

The first two reform options are based in a belief that judges and lawyers can be given the tools to exclude unreliable expert evidence successfully.

3.1.1 Raise the admissibility threshold

The first proposal has been to increase judicial scrutiny of expert evidence by raising the threshold of admissibility. Most efforts to create a stricter admissibility test are modelled on the US Daubert standard.233

The first problem with this initiative is that there is major disagreement with the form of the test. Even the Daubert formulation has come under serious criticism.234 The second issue is that judges must be competent to understand the concepts in order to apply the test. There are, as was discussed in the first part, doubts about judges’ ability to evaluate expert evidence.235

3.1.2 Educate the judiciary and lawyers

Consequently, the second major suggestion for improving the quality of expert evidence has been that judges and lawyers receive training in evaluating expert evidence; judges so that they are able to evaluate admissibility properly and lawyers so that they understand when to challenge poor quality expert evidence, and thus to trigger the required judicial scrutiny.236

There is considerable support for training the judiciary and counsel in relation to sex offences and cases involving child witnesses.237 The English judiciary in particular has devoted significant resources to judicial training in these areas, to the point that judges cannot hear sex cases unless they are trained.238 England is also taking the lead in training and accrediting lawyers, although there are serious questions about the likely efficacy of such training.239

230 NAS Report 2009, chapters 6 - 8.

231 NAS Report 2009 at 15 - 20.

232 See especially the NAS Report 2009 but also the EWLC Report 2011, Young et al. 1999, and the NZLC Report 1999 & NZLC Report 2001.

233 New Zealand Law Commission Evidence - Reform of the Law (NZLC R55v2, 1999) at C99 - 100. The New Zealand Law Commission unveiling the new substantial helpfulness test which later became s25 of the new Evidence Act 2006 describes it as drawing on Daubert and noted that previous New Zealand case-law had drawn on Daubert too. The English Law Commission also claimed to have based its new model test on Daubert. See also Edmond 2012; Edmond & Roberts “The Law Commission’s report on expert evidence in criminal proceedings” (2011) 11 Crim LR 844 discussing the EWLC recommendations and the NAS Report 2009 discussing the US.

234 Bernstein 2008; NAS Report 2009 at 11; Haack 2003, at 205; Ozonoff, David “Epistemology in the Courtroom: A Little “Knowledge” is a Dangerous Thing” (2005) 95 American Journal of Public Health S13 [Ozonoff 2005]; Edmond 2012.

235 See for example the NAS Report 2009; Edmond 2012 at 47; Edmond and Roberts 2011 at 861.

236 See for NZ the New Zealand Law Commission Evidence Law; Expert Evidence and Opinion Evidence: a Discussion Paper (NZLC PP18, 1991) [NZLC 1991]; for the US NAS Report 2009 at 27, 234 - 236; for England and Wales EWLC Report 2011 at [8.2]; Edmond 2012 at 32.

237 MacDonald & Tinsley 2011 at 264 - 268 discuss international calls for training and training programmes for judges in family violence and sexual assault cases.

238 Plotnikoff & Woolfson 2012 in Spencer & Lamb 2012 at 35 - 37; MacDonald & Tinsley 2011 at 264 - 268.

239 Plotnikoff & Woolfson 2012 in Spencer & Lamb 2012 at 37 - 40; Henderson 2012 in Spencer & Lamb 2012 at 43; 56 - 58; MacDonald & Tinsley 2011 at 268 - 270. A new initiative to train advocates in how to examine and cross-

There has been criticism of the training available to lawyers and judges in the US. Training, especially post-qualification, tends to be unsystematic, voluntary and ad hoc.240 The training currently available to law students in New Zealand about expert evidence generally focuses solely on the law on the topic, and may include some very broad education in certain areas, such as children’s memory or patterns of sexual assault. 241 Only one of New Zealand’s law schools offers any papers in forensic science.242

Scientific commentators argue that the education required must be of significant depth, encompassing not only training in the mechanics of evaluation (such as the meaning of the various technical factors for consideration in Daubert-type admissibility tests, which include, for example, “falsifiability” and “error rates”), but also an understanding of the philosophy or ethos of scientific research and clinical decision-making.243 Some argue that the scientific world view is so significantly at variance with that of law that this re-education may be difficult to achieve, and that a sweeping “cultural change” in legal attitudes to scientific evidence is required.244

It has been suggested that training should begin at law school as well as in continuing legal education courses.245 As well as recommendations that judges and lawyers generally be trained, some have recommended that only specially trained judges oversee trials involving complex expert evidence. This is discussed more below.

Some have also recommended that juries receive training in understanding scientific evidence.246 This parallels calls for juries in all trials be given greater assistance in understanding the court process, their role, and the legal issues and evidence in each trial.247

3.1.3 Juror training

In addition, it has been suggested that jurors receive training in assessing expert evidence.248 These recommendations parallel other proposals that juries be educated to overcome more general difficulties in understanding the trial process and their role and in grasping the legal issues and evidence in all trials.249 There have also been calls for juries to receive education to overcome common prejudices against sexual assault complainants.250 Possible methods of training include pamphlets,251 judicial directions (the effectiveness of which have been questioned, as described above) 252 and “counter-intuitive” or “social framework” evidence from

examine vulnerable witnesses, the Gateway to Advocacy by Plotnikoff et al, is shortly to be launched in partnership with the legal professional bodies.

240 NAS Report 2009 at 234 - 236; Edmond 2012 at 50.

241 This reflects the authors’ examination of the evidence law curriculum at all the NZ law schools; The English Judicial College, which provides training for judges at all levels, does cover expert evidence and even one particular reform, “hot-tubbing”, discussed below, in seminars on case-management and sexual offences offered to judges, including some mandatory courses. However, there does not appear to be any specific training on the assessment of expert evidence or methodology. See “Judicial College Prospectus of Education” (April 2012- March 2013), Judiciary of England and Wales <http://www.judiciary.gov.uk/publications-and-reports/judicial- college/2011/Courts+Judiciary+Prospectus+of+Education+April+2012+-+March+2013> (accessed 29 Sept 2012).

242 Personal communications with Professor Mark Henaghan, Dean of Otago Law School; Professor Tony Smith, Victoria Law School; Scott Optican, Senior Law Lecturer, Auckland Law School. Otago Law School offers papers dealing with forensic science and will soon offer a course for potential expert witnesses.

243 Eg NAS Report 2009 at 233 - 236; Kovera et al 2002 at 197 - 198; Edmond 2012 at 490, 64; Edmond & Roberts

2011.

244 Haack 2003, at 208; McQuiston–Surrett & Saks 2009 at 436 - 437; Edmond & Roberts 2011 at 857, 861; This mirrors long-standing calls for cultural change amongst lawyers and judges dealing with sexual assault, family violence and child witnesses: see Plotnikoff & Woolfson 2012 in Spencer & Lamb 2012 at 35 - 37.

245 NAS Report 2009 at 27, 235. Neither the EWLC nor the NZLC has discussed delivery methods.

246 NAS Report 2009 at 234.

247 Young et al. 1999; Thomas 2010; Auld Report 2001: see discussion in Jury Competence section.

248 NAS Report 2009 at 234.

249 Young et al. 1999; Thomas 2010; Auld Report 2001: see discussion in Jury Competence section.

250 MacDonald & Tinsley 2011 at 237, 373 - 374; Elaine Mossman et al Responding to Sexual Violence: Environmental Scan of New Zealand Agencies (Ministry of Women’s Affairs, 2009) at xxi.

251 MacDonald & Tinsley 2011 review at 240 - 241.

252 MacDonald & Tinsley 2011 review at 237 - 239.

expert witnesses.253 Further research has been recommended to investigate the effectiveness of all these methods.254

3.2 Enlist the Scientists

The second major group of reform proposals are based in a mistrust of the ability of judges to become adequate gatekeepers. Instead, they seek to enlist the scientific community to assist judicial decision-making.255

3.2.1 Expert panels

Some have envisaged an arm’s-length arrangement where a body of experts proffers advice to judges on relevant scientific issues. Options have included the establishment of out-of-court expert panels to guide judges by the periodic release of advice about the reliability of new developments or theories in science or the scientific consensus regarding certain issues256 to the creation of written manuals or Bench books covering common scientific issues,257 to expert panels to whom individual judges can apply for a definitive opinion on scientific issues arising in specific trials.258

The theory is that the opinion of a panel of disinterested senior experts describing the consensus on a principle or technique would carry more authority and have greater accuracy than the opinion of a court-appointed or parties’ experts,259 and would at any rate be “consistently superior to any evaluation by the judiciary, notwithstanding any training the latter might receive.”260

However, several problems with these proposals have been described: Implementation would require considerable investment and the development of considerable infrastructure to enable the selection of appropriate issues and the writing and updating of opinions, and in ensuring transparency.261 There may be issues with a judge deferring to the opinion of a panel of persons not available for examination.262 Further, guidelines are only effective where their users understand them. The ultimate issue is, once again, judicial competence to understand expert advice.263

3.2.2 Court-appointed experts

Alternatively, reformers propose that judges appoint individual experts in particular trials either as the court’s expert witness or to act as expert assessors, or adjunct judges to assist the primary judge in deciding the evidential issue.264

Although there is some controversy in the English Court of Appeal,265 it is generally considered that courts have an inherent power to appoint their own expert witnesses.266 The New Zealand Family Court also has a statutory power to appoint experts, which it uses extensively. Both the

253 MacDonald & Tinsley 2011 review at 239 - 241.

254 NAS Report 2009 at 234; MacDonald & Tinsley 2011 at 374.

255 As Edmond & Roberts 2011 at 857 - 858, say the “broad alternative” to raising the admissibility threshold and training judges is to trust the scientists to tell us what is reliable via the “consensus amongst experts”. They criticise the English Law Commission for paying insufficient attention to scientists.

256 Welner 2012; Edmond & Roberts 2011 at 858.

257 NAS Report 2009 at 234, citing Reference Manual p.vi; see also Kovera et al 2002 at 198 expressing hope expanded version might help address the problems with judges’ lack of understanding.

258 Welner 2012 at 10.

259 Edmond & Roberts 2011 at 858 - 859.

260 Edmond & Roberts at 859.

261 Welner 2012 at 10.

262 This was the reason the EWLC rejected the idea (EWLC Report 2011 at [20], fn 14). Cf Edmond & Roberts 2011 at 859 commenting that engagement need not mean deference, and pointing out that while the opinion of an expert panel would carry weight the ultimate decision would still belong to the judge.

263 NAS Report 2009 at 238.

264 Rares 2012 at 33 - 34; Davies 2004.

265 See Neuberger LJ, MR, “Keynote Address” (Expert Witness Institute Annual Conference, 5 October 2011).

266 EWLC Report 2011; Davies 2004; NZLC Report 1999 at [90].

UK Criminal and Civil Procedure Rules allow a judge to direct the appointment of a single joint expert (whether between parties or co-defendants – but not defence and prosecution).267 Arguably, since the New Zealand’s High Court Rules’ code of conduct for expert witnesses268 states that their primary responsibility is to the court, all experts are de facto court appointees.269 However, except in the Family Court, under the current system experts continue to be selected and instructed by the parties only and so the risk of selection bias is still present.

There is also some empirical research suggesting that juries do not give court-appointees who appear alone any more credence than they give partisan appointees,270 but that court-appointed experts may be more believed when they appear together with partisan appointees.271

Proponents have argued that court-appointees are likely to be less susceptible to adversarial bias than party appointees272 and, second, provided the court has rigorous selection processes, court-appointment may also improve the quality of appointees, avoiding the less competent or extremists. It has also been seen as a way of deterring the parties’ experts from over- or under- playing the evidence.273

However, critics claim cost increases are likely, since the appointment of the court’s expert will either be in addition to the parties’ existing experts274 – although not in the Family Courts, where the court’s expert is the first to be appointed - or, if the court appoints its expert first, ,275 may prompt the parties to seek their own experts to review the court expert’s opinion276 and, furthermore, cause delays whilst the parties go through that process. There is often considerable resistance to the idea that the court’s expert might be the sole appointee, although there are moves in England and Australia277 towards the appointment of joint experts in civil cases and, in England, for co-defendants to also share experts.278 Lawyers and judges are also sometimes resistant to court-appointed experts on the basis that they violate the traditional neutrality of the judge in the adversarial system.279

Critics are especially negative about the prospect of restricting experts to court-appointees only. Court-appointed expert witnesses or assessors may still be biased, or, alternatively, simply

267 UK Criminal Procedure Rules 2012 R.33.7 by which co-defendants can be directed to use a “single joint expert” and UK Civil Procedure Rule 35.7 by which where two or more parties wishing to call expert evidence can be directed to use a “single joint expert.” Also under the Civil Procedure Rules parties can require other parties’ experts to answer specific written questions in their reports(CPR R.35.6).

268 Schedule Four High Court Rules: copy attached in the appendices.

269 In England, the joint party expert could also be seen as fulfilling the role of CAE: Civil Procedure Rules, Practice Direction 35 at [7]. See discussion in Leveson 2009 at 4.

270 Nancy Brekke et al “Of Juries and Court-Appointed Experts: The Impact of Nonadversarial versus Adversarial Expert Testimony” (1991) 15 Law & Hum Behav 451, discussed in Sanders 2003 at fn 182.

271 Joel Cooper and Joan Hall “Reactions of Mock Jurors to Testimony of Court Appointed Expert (2000) 18 Behav Sci & Law 719, discussed in Sanders 2003 at fn 182.

272 Blackwell in Seymour, Blackwell & Thorburn 2011 at 10; NZLC Report 1999 initially proposed it on this basis but later withdrew after practitioner opposition.

273 EWLC Report 2011; cf Edmond 2012 at 39.

274 Haack 2003, at 211-12; Davies 2004 at 373. This also contributed to the New Zealand Law Commission withdrawing its support from court-appointed experts (NZLC Report 2001 at [377]) and to the English Law Commission’s recommendation that courts appoint experts only rarely (EWLC Report 2011 at [6.1] - [6.3], [6.44] - [6.50], [6. 67]).

275 Bernstein 2008 at 127 - 128.

276 Edmond 2012 at 38; Andrew Gavil “The challenges of economic proof in a decentralized and privatized European competition policy system: lessons from the American experience” (2008) 4(1) JCL & E 177 at 203 - 204. This happens already in the NZ Family Court, although the appointment of additional experts is subject to the judges’ permission.

277 US Federal Rules of Appellate Procedure, Order 34A, Rule 4.

278 UK Criminal Procedure Rules 2012 R.33.7; UK Civil Procedure Rules R.35.7; Practice Direction 35, at [7]. See discussion in Leveson 2009 at 4.

279 EWLC Report 2011 at [6.7] - [6.8]; Davies 2004 at 373; Edmond 2012 at 38. Maintaining judicial neutrality contributed to the NZLC’s withdrawing its initial recommendation that courts appoint experts: NZLC Report 2001 at [377]. Protection of the adversarial structure also contributed to the English Law Commission’s recommendation that experts not be appointed as assessors, since the final word must still be the judge’s: EWLC Report 2011 at [6.4].

represent only one side of a legitimate debate within their field.280 They argue that in either case it is better to retain two competing party experts to ensure all the options are canvassed.281 Further, they say fear of peer review by an opposing expert provides a useful check on negligent or biased experts.282 It is even argued that the partisan zeal of party appointees may make them more motivated to find all the available information than court-appointed experts. 283

Speaking practically, it has been argued that judges may struggle with this option if they do not know whom to appoint.284 The establishment of some sort of selection panel or approved list of experts would overcome this problem.285 The New Zealand Family Court has set out selection criteria for its experts and maintains a list of those accredited without apparent difficulty.286

In addition, it is sometimes proposed that all the experts in a case assist the judge to decide admissibility by attending an informal pre-trial discussion aimed at educating the judge and lawyers as to the general scientific principles and the issues and perimeters of the debate.287 Cost and parties’ willingness to participate fully may be drawbacks.

Court-appointed assessors are not common but there is a long history of their appointment.288 The chief objection is that with an expert assessor sitting with the judge, the judge effectively hears evidence in private and without parties having any power to examine the evidence.289

3.2.3 Accreditation and pre-trial peer review

Two other proposals for improving the quality of expert evidence involve making use of pre- existing practices within the experts’ own professions. First, the courts could require that all expert witnesses are accredited or certified by the relevant professional body,290 and second the professions themselves, as a matter of good practice, and the courts also, could require all expert reports are peer-reviewed before submission.291

Peer review and accreditation are both practices in use in many professions and they are regarded as important means of quality control.292 Moreover, empirical studies discussed earlier suggest that fact-finders at least find the significance of peer review easy to grasp.

While professional accreditation is required before experts may join the New Zealand Family Court expert witness register, generally in New Zealand, as in other comparable jurisdictions, accreditation is voluntary. Similarly, while some few organisations require peer-review of all

280 Downes 2004 at 2.

281 Shilston 1992 at 256; Gavil 2008 at fn67, 202, Rares 2012 at 37.

282 Gavil 2008 at 203.

283 Gavil 2008 at 203

284 EWLC Report 2011 at [6.7] - [6.8].

285 As was recommended by the Royal Commission on Criminal Justice (1993); EWLC Report 2011 at [6.44] - [6.50], [6.67]; cf Edmond 2012 at 38 who calls a selection panel “cumbersome”.

286 In the Family Court Practice Note for Specialist Report Writers (March 2011); Seymour, Blackwell & Thorburn in Seymour, Blackwell & Thorburn 2011 at 2. Also the British Psychological Society maintains list of chartered psychologists prepared to act as expert witnesses but does not give any further accreditation than their being chartered members (Blackwell in Seymour, Blackwell & Thorburn 2011 at 6 - 7).

287 Welner 2012 at 11.

288 MacDonald & Tinsley 2011 at 254, fn 143; Davies 2004.

289 NZLC Report 2001 at [111]; MacDonald & Tinsley 2011 at 254 dismissed this idea very quickly.

290 The NAS Report 2009 made accreditation one of its key recommendations (chapter 7, esp 194 onwards); accreditation and peer review are both factors in the Daubert test: at 509; Ophelia Leslie et al “Criminal barristers’ opinions and perceptions of mental health expert witnesses” (2007) 18(3) The Journal of Forensic Psychiatry & Psychology 394 at 396, 403, found that English lawyers supported training and accreditation of expert witnesses. The ABA also recommended that forensic scientists and laboratories supplying the courts with information should be accredited (NAS Report 2009 at 194, fn 4, citing the American Bar Association, PC Giannelli and M Raeder (eds) Report of the ABA Criminal Justice Section’s Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process. Achieving Justice: Freeing the Innocent, Convicting the Guilty. (American Bar Association, Chicago, 2006); Ireland 2012 supported accreditation at 34; the EWLC also listed it as a factor (EWLC Report 2011 at [1.42], [3.18]); New South Wales Law Reform Commission Report 109: Expert Witnesses 2005 at [9.42-69].

291 Welner 2012 at 13-26; EWLC Report 2011 at [1.3], fn.34 noted it might be considered.

292 NAS Report 2009 at 114, 124; Welner 2012 at 7, 9.

reports submitted by their members (such as DSAC and ESR) submitting court reports to peer review is also voluntary.

However, it has been argued that while accreditation poses few problems, as the structures are in place, there may be issues finding sufficient reliable peer reviewers. One option is to create a clearing house system where all reports are assessed or, less expensively, a list of accredited peer-reviewers.293 Increased cost and time may also be issues. There may also be issues in that peer review is essentially hearsay evidence. These issues would be relieved by ensuring the reliability of the peer reviewers.

3.2.4 Codes of conduct

The next major proposal for the improvement of expert standards has been for the courts or professional bodies to require expert witnesses to adhere to a code of conduct. New Zealand,294 England295 and Australia296 already all have court-imposed codes of conduct, as do some individual professional organisations.297 There is also a well-established principle in case law that experts owe their greatest duty to the court.298

However, it has been argued that codes cannot compel obedience,299 and may not overcome bias or partisanship.300 Further, there is considerable variation in the codes created by different professions, and many professions lack any code.301 There is some suggestion that all professions who supply experts to the courts should adopt a uniform code for witnesses.302

Nonetheless, those in favour of codes argue that a code informs not only individual experts (and lawyers and judges) of their obligations in specific cases and act as a reminder to disengage from any partisan bias,303 but also they raise awareness amongst the profession generally.304 Codes also establish a standard against which misconduct can be measured and disciplinary action taken. 305

293 Welner 2012 and Edmonds et al both suggest an officially recognised panel of reviewers.

294 Schedule Four of the High Court Rules (copy attached in appendices) applies in the Family and civil courts and has been referred to in the criminal courts (see brief discussion in Chpt 3, “Contact and cooperation between experts”); in the Family Court there is also a Practice Note for Psychologist Specialist Report Writers; Seymour, Blackwell & Thorburn in Seymour, Blackwell & Thorburn 2011 at 2; Blackwell 2007 at 101.

295 English Civil Procedure Rules, Part 35.3 (experts’ overriding duty to the court) and Practice Direction 35; Woolf LJ Access to Justice: Final Report to the Lord Chancellor on the civil justice system in England and Wales ((prepared for Lord Chancellor’s Department, 1996), chpt 13, at [3], [25], [27], [30]; Jones v Karney at [154] per Hope LJ

296 NSW Uniform Civil Procedure Rules 2005 Part 31 at 24; David Field, Ian Coyle, Graham Starmer, Glen Miller and Paul Wilson “Trust me: I’m an expert”: Forensic evidence and witness immunity” (2009) 41 Australian Journal of Forensic Sciences 113 [Field 2009]; New South Wales Law Reform Commission Report 109: Expert Witnesses New South Wales Law Reform Commission Sydney 2005 at [9.10-19].

297 But not the NZ Psychologists: Seymour, Blackwell & Thorburn in Seymour, Blackwell & Thorburn 2011 at 2; See re Australia: Federal Court Rules 1979, Order 34A, Rule 3 (amended 1998); Supreme Court Rules 1970, Schedule K (amended 2000): Cunningham 2009 501; Freckelton 1999; Downes 2004 at 2; and see re US NAS Report 2009 at 214;

Welner 2012 at 7; Drogin & Howard 2001, 36.

298 In the NZ criminal court: R v Carter [2005] NZCA 422; (2005) 22 CRNZ 476 (CA) at [47] affirmed in R v Hutton [2008] NZCA 126; in the NZ Family Court: K v K HC Auckland CIV 2003-404-6535, 11 June 2004. MacDonald & Tinsley 2011 at 369; Seymour, Blackwell & Thorburn in Seymour, Blackwell & Thorburn 5, 16; in England and Wales National Justice Campania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd’s Rep 68 at 81 per Cresswell J describes experts’ responsibilities to the court and reviews case law; affirmed by UK Supreme Court in Jones v Karney at 154 - 155 per Hope LJ, discussing English situation and see also judgment in same case of Collins LJ at [77] - [78] discussing US situation.

299 Field 2009 at 127; EWLC Report 2011 at [1.23].

300 Davies 2004 at 371 - 372; EWLC Report 2011 at [1.23].

301 Freckelton 1999 at 193.

302 NAS Report 2009 at 214.

303 Seymour, Blackwell & Thorburn in Seymour, Blackwell & Thorburn 2011 at 21 refer to the Code as a reminder.

304 Freckelton 1999 at 193.

305 The NAS Report at 212 discusses debate.

3.2.5 Train experts in court craft

Another proposal is that experts be trained in the skills required to be good witnesses. Training is generally envisaged as covering understanding the court process and philosophy, the relevant law and legal concepts, the ethical responsibilities of the expert witness and also in the practical skills of report-writing and evidence presentation, including cross-examination.306

The intention is not only to improve the conduct and performance of expert witnesses307 but also to increase their comfort with the legal process and reduce the risk that some may be reluctant to participate.308 Whereas in some jurisdictions such as the US and Australia degree- level programmes exist to teach these skills, New Zealand experts have very few avenues to obtain any training.

3.3 Reform the Trial

In addition to these measures, there are also a number of possible reforms of the way in which expert evidence is heard in court.

3.3.1 Consecutive evidence

The first alternative of these reforms is to call experts for both sides consecutively, the opposing side’s expert following immediately on the heels of the expert witness whom they are critiquing. This is said to increase the jury’s comprehension of the evidence because it reduces the risk that jurors will forget the first expert’s evidence in the (sometimes considerable) interval before the second expert appears. It may also increase the likelihood that the experts will be able to sit in on and monitor each others’ evidence.

The disadvantage of this system has been noted as being that it forces the early disclosure of the opposition case. However, this may be largely illusory given, first, the requirement even in criminal cases that parties disclose the statement or report of any expert they intend calling, and, second, the fact that the substance of their expert witness’s evidence would already have largely be revealed in the cross-examination of the first witness.

However, the next reform proposal to be discussed has received considerably more discussion and appears to have considerably more support.

3.3.2 Concurrent evidence or “Hot-tubbing”

The second alternative trial process proposed is that the experts are called simultaneously in a panel discussion chaired by the judge, a process known in its home country of Australia as “hot- tubbing.”309 In Australia, the process appears to be that prior to trial the experts are required to meet and produce a joint statement defining the issues in dispute. A high level of pre-trial discussion between experts is one of the hallmarks of this process.310 At trial the experts are called and sit together. Each makes a short presentation, identifying and explaining what they believe are the key issues and commenting upon the other’s exposition. Each expert can then question the other freely, as can the lawyers and judge. Lawyers who receive unfavourable or incomprehensible responses can seek clarification or response from their own expert. There is no conventional examination-in-chief, cross- or re-examination.311

306 Cunningham 2009 501, 505-6; NAS Report 2009 at 233, see generally chpt 8 “Education and Training in Forensic Science”.

307 Cunningham 2009 498; NAS Report 2009 at 233. See generally NAS Report 2009 at 224 - 234.

308 Cunningham 2009; Cunningham & Weiland 2009.

309 The NZLC, noting that expert evidence was already being heard consecutively in some isolated cases, recommended allowing consecutive evidence and that there be a law change to clarify its acceptability, despite receiving mixed responses, with practitioners supporting and the judiciary arguing against consecutive evidence. NZLC Report 2001 t [376], [378].

310 See below at 3.3.3 “Increased Pre-trial Discussion”.

311 Rares 2012 at 36. There are variations: sometimes, weirdly, the panel discussion follows conventional examination by counsel: see below. Conversely in England and Wales the process is still not set and varies at the behest of the judge: see for example Ryder J’s description in Re Baby X [2011] EWHC 590 (Fam) at [22]: “The three

The advantages have been argued to be that, first, the evidence is more comprehensible since the areas under dispute are clearly demarcated, the exposition of the evidence is clearer,312 and the evidence for all experts is fresh in the fact-finder’s mind.313 Further, since the expert is chiefly responsible for their own initial statement to the court, the account given tends to be fuller and more accurate than when it is elicited by lawyers.314 Then, the prospect of an immediate response from one’s peers discourages any tendency to over-state or obfuscate the evidence.315 The process is also said to lessen experts’ adversarial bias, perhaps due to the less aggressive nature of the discussion.316 At the same time, it is still possible for lawyers to examine the witnesses closely should it be necessary.

Second, the dispute is narrowed as experts frequently achieve considerable consensus and areas of disagreement are quickly and clearly defined. 317

Third, concurrent evidence saves costs as it reduces the time usually taken in examination: As the issues are well-defined there is no need to traverse uncontroversial material,318 and, further, counsel can rely on his or her own expert to challenge misstatements by the opposing expert.319 The cost-saving aspect is the main reason concurrent evidence is being trialled in England.320 However, in some proceedings the panel discussion usually takes place after conventional cross-examination.321 This will tend to expand rather than reduce hearing time.322

Fourth, experts themselves apparently find the process more respectful and feel they have a better opportunity to give their evidence and a fairer opportunity to debate the issues. 323

Concurrent evidence is widely used in civil proceedings in its country of origin, Australia, and is regarded as highly successful.324 It is sometimes used in English arbitration proceedings,325 and has also been trialled in a specialist civil court,326 where the interim results of a pilot study are

experts commissioned to analyse the key issues were heard in oral evidence by the court. Not for the first time this court was very greatly assisted by hearing their evidence concurrently. A device unfortunately and colloquially known as 'hot tubbing' was used with the agreement of all parties. This process has been tested in America and Australia but not in this jurisdiction. Out of the experts' reports and discussions the court derived an agenda of topics which were relevant to the key issues and to which counsel were asked to contribute. The witnesses were sworn together and the court asked each witness the same questions under each topic, taking a topic at a time. The experts were encouraged to add or explain their own or another's evidence so that a healthy discussion ensued, chaired by the court. Each advocate is permitted to examine or cross examine and where appropriate re-examine each witness after the court has elicited evidence on a topic.”

312 Charles Blaumire-Brown “Hot-tubbing: Cutting Costs and Time” taken from The Times Online 10/03/11

<http://www.forthsonline.co.uk/2011/03/hot-tubbing-cutting-costs-and-time/> (accessed 26 January 2013) [Blaumire-Brown 2011]; Downes 2004 at 3, 4; Australian Law Reform Commission Managing Justice: A Review of the Federal Justice System (ALRC R89, 2000) [ALRC 2000]; Dame Hazel Genn Manchester Concurrent Evidence Pilot: Interim Report (UCL Judicial Institute, 2012) at [30] [Genn 2012]; Rares 2012 at 31, 38.

313 Downes 2004 at 2, 3; ALRC 2000.

314 Rares 2012 at 31. DSAC 2012 in its submission to the NZLC called for a freer and more narrative style of evidence giving to increase accuracy.

315 Rares 2012 at 36; Blaumire-Brown 2011.

316 Downes 2004 at 3; ALRC 2000; Genn 2012 at [1].

317 Blaumire-Brown 2011; Genn 2012 at [30], [34].

318 Anecdotal reports of massive reductions are quite common: see eg Blaumire-Brown 2011; Downes 2004 at 3 (citing an example where a hearing initially estimated to require 6 months hearing time due to the amount of expert evidence to be called, concluded in five weeks through the use of hot-tubbing).

319 Blaumire-Brown 2011.

320 Genn 2012 at [1]. It appears the judiciary is preparing for a wider application of the process: The Judicial College has also included hot-tubbing in its curriculum for judicial education. Further, guidelines for the process have been issued by the Technology and Construction Court: See Genn 2012 at [7] onwards; Blaumire-Brown 2011.

321 Blaumire-Brown 2011; and sometimes also in Australia: Downes 2004 at 10.

322 Blaumire-Brown 2011; Downes 2004 at 10.

323 Downes 2004 at 3, 11; ALRC 2000. The ALRC recommended its use “wherever appropriate” (recommendation 67);

Rares 2012 at 31.

324 Downes 2004; ARLC Report 2000.

325 Blaumire-Brown 2011.

326 The Manchester Technology and Construction Court, a specialist court dealing with building disputes. Guidelines for the process have since been issued by the court: see Genn 2012 at [7] onwards; Blaumire-Brown 2011.

positive.327 Interestingly, a majority of English expert witnesses polled about its potential use were also positive.328 It has been used very occasionally in New Zealand, most notably in the Kahui coronial inquest.329

As advantageous as it appears to be in the civil context, concurrent evidence does not seem to have been used in criminal proceedings, although its use has been proposed a few times in England.330 It is difficult to see why this should be, unless it is the concern that lawyers lose a great deal of control over the witnesses, in cross-examination in particular.

Few disadvantages are recorded in the literature. One disadvantage appears to be the incursion into lawyers’ control of the evidence, since the judge as chair of the panel discussion assumes more prominence than usual, and lawyers lack control over the examination process.331

Some do express concerns that the most confident expert will overwhelm less confident colleagues or absorb an unfair share of the fact-finders’ attention.332 The Australian experience, however, is that experts “co-operate with one another and freely and respectfully exchange their views.”333 Moreover, that a more charismatic expert dominates proceedings is also a risk in normal trials.334 There is also some concern that a dominant expert will push a weaker opponent into making concessions during the pre-trial conferences. This was the situation in the pivotal English case Jones v Karney where the Supreme Court removed experts’ immunity from civil liability (see above).335 Expert witnesses do sometimes complain of being pressured during joint conferences336 and affirm the need to be assertive and to resist coercion.337

Success also depends on the judge’s ability to ensure the necessary pre-trial discussions take place and then to manage the panel discussion fairly.338 However, generally the judiciary and lawyers who use concurrent evidence are positive about it and researchers and judges alike report that lawyers generally overcome any initial concerns about the process with experience.339

Interestingly, there does not appear to be anything in the New Zealand legislation that would disallow the use of either concurrent or consecutive evidence-giving. Section 83 of the Act merely states that the “ordinary way of giving evidence.... in a criminal or civil proceeding” is “orally in a courtroom in the presence of: (i) the Judge or, if there is a jury, the Judge and jury; and (ii) the parties to the proceeding and their counsel; and (iii) any member of the public who wishes to be present, unless excluded by order of the Judge.”340

327 Genn 2012.

328 The Bond Salan Annual Expert Witness Survey November 2012, 2, of 146 experts attending their conference found 53% were positive, 38% undecided and only 6% negative about hot-tubbing’s prospects.

329 Personal communication with Simon Mount, counsel at the Inquest; there are also anecdotal reports of analogous processes being used in the NZ Family Courts: see analysis chapter.

330 Penny Cooper “The Changing World of Witness Preparation and Witness Evidence: Adapting our traditional approaches to witnesses” Keynote Address to Nigerian Bar Association, Legal Practice Section Conference, Abuja, Nigeria 15th November 2011; David Omerod (2006) 5 Archbold News 5 at 9.

331 Charles Blaumire-Brown “Fancy a Dip in the Hot-Tub?”Building.co.uk <http://www.building.co.uk/charles- blamire-brown/4500372.contributor> (accessed 23 February 2013); Blaumire-Brown 2011.

332 Blaumire-Brown 2011.

333 Rares 2012 at 36.

334 See discussion of charismatic witness in first half.

335 Jones v Karney.

336 Bond Salan Annual Expert Witness Survey November 2012.

337 Blaumire-Brown 2011.

338 Blaumire-Brown 2011; personal communication with Simon Mount reflecting on the Kahui Inquest.

339 Genn 2012 at [12], [34]; Downes 2004 at 12; Rares 2012 at 31.

340 Evidence Act 2006, s83.

3.3.3 Increased pre-trial discussions

Pre-trial discussions between experts and the production of a joint report have been a major focus of recent reforms in the civil courts in both Australia341 and England,342 with the aim of reducing costs by narrowing or even resolving the questions of expert evidence.343 Of course, conferencing between experts has been part of Family Court processes in England and New Zealand for many years,344 and is a standard part of English civil pre-trial process also.345 They are not a normal part of New Zealand criminal pre-trial processes, however. Nor does it appear to be normal criminal process in other comparable jurisdictions. Although the UK Criminal Procedure Rules contain a provision allowing the court to direct joint discussions and the production of a joint memoranda as in civil trials346 they are apparently rarely used.347 Although Schedule Four of the New Zealand High Court Rules348 requires experts to conference with a view to narrowing the issues in the Family and civil courts this part of the schedule has been said not to apply to criminal proceedings.349

One survey of expert witnesses in 2012 found that 63% had been involved in joint discussions in the previous year, 53% saying they believed the discussions had led to quicker settlement, although 33% said it delayed or made no difference to resolution. As described above, when asked what aspects of their role were most aggravating, a number listed pressure and aggression from opposing experts during joint discussions.350

There are also reports that some counsel and experts are reluctant to take part in or allow meetings or do not know of their obligations.351

3.3.4 Judge-alone trials

Perhaps the ultimate response to concerns about juror incompetence is to recommend that criminal trials involving expert evidence be heard by a judge alone, as occurs already in the Family Court.

This proposal has been repeatedly rejected in England and Wales.352 However, the parallel proposal that sex trials be heard by judges alone has received considerable attention in New Zealand recently353 and is currently under consideration by the New Zealand Law Commission.354

Arguments in favour of such a reform include that by restricting complex expert evidence cases to judges, it not only avoids the issue of juror incompetence but it is easier to deliver a training since judges have some background knowledge and experience and are effectively a captive audience, available for training over a longer period.355 Moreover, a judge sitting alone might have a better chance of understanding the evidence. He or she could ask questions more freely since there would be no need to protect the jury from exposure to inadmissible evidence.356 It

341 NSW Supreme Court Rules 1970, Part 36, Rule 13CA (added in 2000); NSW SC Practice Note No. SC Gen 11; Uniform Civil Procedure Rules Part 31, 24 (conferencing) Part 31.26 (joint reports); Downes 2004 at 2.

342 English civil court judges can order joint discussions and memoranda under Rule 35.12, Civil Procedure Rules. 343 At one time the Crown Solicitor’s Office called for experts to file joint memoranda: NZLC Report 2001 at [376]. 344 Wall LJ “Family Law Update” (speech to Bond Salan Expert Witness Conference, 6 November 2009).

345 UK Civil Procedure Rules 2010 R.35.12.

346 UK Criminal Procedure Rules 2012 R33.6.

347 Personal communication with Professor Penny Cooper 2 March 2013.

348 Copy attached in appendices.

349 R v Seu CA81/05, 8 August 2005.

350 Bond Salan Annual Expert Witness Survey November 2012.

351 DSAC 2012; complaints by expert witnesses reported in Bond Salan Annual Expert Witness Survey November 2012; Blaumire-Brown 2011.

352 UK Science and Technology Committee proposed but the government rejected, as did EWLC in its 2011 Report: para [3.13], fn 14.

353 MacDonald and Tinsley 2011 at 244 - 258 (Recommendation 7.1).

354 Interestingly, DSAC 2012 in supporting the proposal cited the juries’ difficulties with expert evidence.

355 MacDonald & Tinsley 2011 242.

356 MacDonald & Tinsley 2011 242.

might also be easier to introduce measures that increase the comprehensibility of the evidence, such as concurrent evidence, in the absence of a jury, since counsel might be less concerned about the judge’s ability to disregard inadmissible evidence.357 Finally, as judges must give written decisions it would be possible to ascertain the judge’s comprehension of the evidence, allowing for review by the appellate courts.358

Some have argued that judge-alone trials represent a major infringement of the jury system. However, the response has been that the rationale for the jury’s involvement in criminal trials is anyway less strong than is sometimes thought. The value of the jury is that, in addition to its somewhat dubious value in fact-finding, it enables the community to have direct representation and to participate in the justice system.359 Yet, already very few cases are actually heard by jury. Many incursions are already standard, from trials of the majority of lesser offences360 to trials of serious fraud offences, which restriction, interestingly, is justified on the basis of the juries’ difficulty comprehending complex evidence.361 Further, given the limitations of the jury as fact- finders, it is argued that other means of ensuring community representation, such as a small number of lay people sitting with a professional judge or judges, may be preferable.362

Restricting a trial involving complex expert evidence to a judge alone is sometimes possible in New Zealand. The penalty must be less than 14 years imprisonment and either the accused must elect it, with the judge’s permission,363 or the judge can order it where the trial is likely to be “long and complex”,364 “long” usually meaning three weeks or more.365 This provision is usually relied upon in serious fraud trails, but has also been applied in other complicated cases.366 However, many evidentially complex child abuse and neglect cases will not require three weeks’ hearing time and some that are both “long and complex” will involve offences where the maximum penalty is over 14 years.367 A law change might be helpful.

However, it might also be suggested that where a case was heard by a judge alone due to concerns about the complexity of the expert evidence, it might also be wise to use only specially trained judges.

There are already some types of trial heard by specialist judges and there are strong proposals to extend this to others, such as sexual assault cases.368 Given that the empirical research suggests judges have almost as many difficulties with expert evidence as jurors, equally strong arguments might be made to limit cases involving complex expert evidence to specially trained judges.

357 However, this confidence may be illusory since some research suggests judges also struggle to disregard inadmissible evidence: see discussion of judicial competence above and MacDonald & Tinsley 2011 at 242 - 243.

358 MacDonald & Tinsley 2011 at 243 - 244, making a parallel argument in relation to sex trials.

359 The reason the Law Commission ultimately recommended its retention: NZLC Report 2011 at [127].

360 Offences where the maximum penalty is less than 2 years cannot be tried by jury (Criminal Procedure Act 2011, s6). See discussion of the right of election etc below.

361 See for example the discussion in Auld Report 2001 at [183].

362 MacDonald & Tinsley 2011 at 248 - 257 recommend judge-alone for sex cases and review options for lay participation.

363 Summary Proceedings Act 1957, s66; Crimes Act 1961, s361C.

364 Section 361D; see s361D(4)(a): “the Judge must take into account the following matters: (a) the number and nature of the offences with which the accused person is charged: (b) the nature of the issues likely to be involved:

(c) the volume of evidence likely to be presented: (d) the imposition on potential jurors of sitting for the likely duration of the trial: (e) any other matters the Judge considers relevant.”

365 MacDonald & Tinsley 2011 at 245, fn 104.

366 Eg Iti v R [2011] NZCA 114; Signer v R [2011] NZSC 46

367 Although all but the most serious assaults and injuries short of murder have penalties of under 14 years imprisonment (ie: Crimes Act 1961, ss188(2) - 190, s191(2) and ss192 - 195A), as do a number of serious sexual offences short of sexual violation (Crimes Act 1961, ss131, 131B, 132(3), 134, 135).

368 See NZ Law Commission Issues Paper Alternative Pre-Trial and Trial Processes: Possible Reforms [NZLC IP30, 2012] and MacDonald & Tinsley 2011 at 258 - 264.

3.4 Disciplinary Action and Tortuous Liability

Finally, it has been argued that tortuous liability and disciplinary action by the experts’ professional organisation can provide a disincentive to unprofessional conduct.

In New Zealand, England and Wales,369 the US370 and Australia371 experts are liable to professional disciplinary action for improper testimony.372 However, all witnesses, experts included, have enjoyed immunity from civil prosecution for approximately 400 years,373 although they have always been liable for criminal action for perjury, and various other limited exceptions have also opened up along the way.374 Experts still have immunity in Australia,375 New Zealand,376 and Canada.377 However, many American states have removed the immunity from experts,378 and in 2011 the English Supreme Court also lifted the immunity, paving the way for actions in tort or contract.379

The immunity is based in the concern that liability to civil action would have a “chilling effect” on experts’ participation in the court process, making many experts reluctant to testify and discouraging those who did testify from speaking fully and frankly.380 There is also a risk that raising the immunity would effectively open the way for parties to re-litigate cases.381

Critics, however, argue that that there must be a strong public-interest rationale to justify removing peoples’ right to pursue a remedy against those who have wronged them, and there is no proof that removing the immunity discourages experts’ participation.382 It is agreed that so far there is no solid empirical proof either way. However, 92 of 106 expert witnesses taking part in an annual survey in 2010 said they would continue to act as witnesses even were immunity substantially reduced.383 Further, six months after the Supreme Court removed the immunity, the next annual survey of 157 experts found they remained reasonably sanguine about the situation.384 The following years’ survey did not ask about issues related to witness immunity, suggesting that it had ceased to be of great concern. Nor is there any evidence that barristers violate their duty to the court more since their parallel immunity was removed in 2002.385

Further, the critics say that conscientious experts need not fear vexatious litigation: They will be safe while they act in accordance with their well-established and overriding duty to the court.386

369 GMC v Meadow.

370 Austin v American Association of Neurological Surgeons [2001] USCA7 296; 253 F 3d 967 (2001); Deatherage v State of Washington Examining Board of Psychologists 948 P 2d 828 (1997); Freckelton 1999 reviews authorities at 192.

371 James v Medical Board [2006] SASC 267; Freckelton 1999 reviews authorities at 192.

372 See reviews of case law in Field 2009 (for Australia and UK) and also in Freckelton 1999 (UK, Australia and US).

373 See historical review by Phillips LJ in Jones v Karney at [11] - [13].

374 Jones v Karney at [83] per Collins LJ; per Hale LJ.

375 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, (2005) 223 CLR 1 at [39]; Sovereign Motor Inns Pty Ltd v Howarth Asia Pacific Pty Ltd [2003] NSWSC 1120; James v Medical Board of South Australia [2006] SASC 267; (2006) 95 SASR 445; Commonwealth v Griffiths [2007] NSWCA 370; (2007) 245 ALR 172.

376 Lai v Chamberlains [2006] NZSC 70; [2007] 2 NZLR 7.

377 Reynolds v Kingston (Police Services Board) [2007] ONCA 166; Carnahan v Coates (1990) 71 DLR (4th) 464; Varghese v Landau Ontario Superior Court of Justice 02-CV-230524CM2, 30 January 2004; [2004] Can LII 5084 and Deep v College of Physicians and Surgeons of Ontario [2010] ONSC 5248.

378 See review of authorities in Jones v Karney at [78] - [81] per Collins LJ.

379 Jones v Karney.

380 Jones v Karney at [15] - [16], [39] - [41] per Phillips LJ; GMC v Meadow at [46].

381 Jones v Karney at [17] per Phillips LJ.

382 Jones v Karney per Phillips LJ, cf at [168] per Hale LJ.

383 Jones v Karney at [54] per Phillips LJ.

384 The Bond Salan Annual Expert Witness Survey November 2011, 5-6, found that while there had been a 15% increase in attendance at training on the Civil Procedure Rules (which contains the code of conduct for experts) that year, 96% had not changed their contracts to restrict or exclude liability for negligence and 21% still had not arranged professional indemnity insurance for their work as expert witnesses.

385 Jones v Karney at [58] per Phillips LJ, discussing Arthur JS Hall v Simons [2002] 1 AC 615 (HL).

386 Jones v Karney at [188] - [120] per Collins LJ. Se also GMC v Meadow at [66].

The English Supreme Court also noted that there had been no noticeable upsurge in actions against barristers since their immunity was removed.387

Critics of the immunity also argue that there is a strong positive reason for removing the immunity, in that civil liability provides a financial incentive to maintain good practice and to not overstate the strength of their opinions,388 and that such an incentive is important because the other available safeguards are so insufficient.389 Similarly, experts’ liability to disciplinary action for misconduct “helps to deter those who might be tempted to give partisan evidence and not to discharge their obligation to assist the courts by giving conscientious and objective evidence.”390

However, while the English Supreme Court opined lifting the immunity was unlikely to discourage experts because, unlike ordinary witnesses, they chose to be involved in cases and are paid - and insured - for their work,391 this is not entirely true. Many expert witnesses, especially in the field of child abuse and neglect, appear not out of choice but because they were the treating clinician. Further, where they are public hospital employees they do not receive income for their appearances.392 However, certain professions are recognized as more anxious and possibly more vulnerable than others, in particular, professionals working in the field of child abuse and neglect.393

  1. Conclusion

This chapter outlined the major problems identified with expert evidence in the academic literature and described the main solutions which have been proposed.

Problems

Underlying all of the specific criticisms raised by the various critics is a strong concern with the quality of the expert evidence entering the courts, a concern which encompasses both criticisms of the reliability of the evidence itself and also of the court system’s ability to handle that evidence. There are long-standing concerns that expert witnesses may be biased, that they may overstate the strength of their evidence or may be incompetent. In the US and England and Wales the risks of unreliable expert evidence have been underlined recently by the revelation of a series of wrongful convictions based on flawed expert evidence. In the US the advent of DNA testing has revealed a large number of wrongful convictions, a significant proportion of which were made in reliance on bad expert evidence. In England and Wales the Court of Appeal has overturned convictions in several high-profile cases where mothers were convicted of killing infants based, again, largely upon flawed expert evidence.

If expert evidence is potentially flawed, then the spotlight must fall on those whose job it is to evaluate that evidence. Considerable attention has been paid to the ability of juries and of judges to assess experts and their evidence.

In relation to juries within the criminal courts, empirical research, while not without its own limitations, suggests that juries of lay people are frequently poorly equipped to understand and evaluate expert evidence. They have difficulty with complex technical information and tend not to understand concepts of statistical probability. Many jurors in fact struggle to follow the evidence and legal rules in ordinary trials. Further, jurors have also been found to rely upon irrelevant or less relevant factors in assessing expert evidence, such as the personal

387 Jones v Karney at [59] per Phillips LJ.

388 Field 2009 at 123, 125-26; Jones v Karney at [67] per Brown LJ .

389 Field 2009 at 124-25.

390 GMC v Meadow at [46].

391 Jones v Karney at [18] per Phillips LJ para.18; at [121] per Collins LJ.

392 Similarly, in her dissent in Jones v Karney Hale LJ commented that not all experts are professional witnesses: some testify only occasionally and will not be insured.

393 Jones v Karney at [170] - [172] per dissenting judgments of Hope LJ and Hale LJ .

characteristics of the expert. They have also been found to be rather suspicious of expert witnesses and tend to see them as biased or hired guns.

It is often assumed that if juries have difficulties, judges can assist by winnowing out unreliable evidence at the pre-trial stage. However, research also suggests that judges are almost as poor at evaluating expert evidence as are jurors. Not only do they not understand relevant concepts or how to assess expert evidence but they share many of the juries’ reliance on irrelevant factors to judge the evidence. They too tend to be very suspicious of some potential reasons for bias, whilst remaining oblivious to others. Moreover, the other traditional safeguards on which the courts rely to alert fact-finders to issues with expert evidence - namely challenge by cross- examination, by the marshalling of opposing experts to critique the evidence and also the use of judicial directions to guide juries - all also turn out to be lacking.

Lawyers, on whom the courts rely to challenge the admissibility of expert evidence, also have difficulty assessing expert evidence. Where they are underfunded they are less likely to mount any challenge.

Even where expert evidence is disputed, cross-examination has been found to have little or no effect on juries’ opinions of expert witnesses unless the expert makes serious concessions. Even the presence of another expert supporting the cross-examiner is unlikely to change the jury’s assessment of the first expert. Research also suggests that conflict between two experts will sometimes cause jurors to simply ignore all of the expert evidence and to fall back on their prior assumptions.

Finally, empirical research suggests that reliance on judicial directions to warn juries against some errors in reasoning is misplaced, since jurors often struggle to understand their meaning and significance.

All of the forgoing are problems legal scholars and practitioners alike see with expert evidence and with the legal system’s ability to apprehend problematic expert evidence. However, expert witnesses have also identified areas in which the legal system itself distorts expert evidence or the picture of it made available to the fact-finders.

First, experts criticise cross-examination as a means of testing their evidence, arguing that the questioning strategies employed by lawyers are often obstructive and misleading, misrepresenting the actual views of the expert. These criticisms are surprisingly similar to those made in relation to the cross-examination of vulnerable witnesses, especially of children. Considerable empirical research has led to the conclusion that conventional cross-examination is not a suitable means of testing their evidence.

Experts also complain of the stressfulness of their involvement in court proceedings, due not only to cross-examination but also to the length of time and multiple delays incurred. Again, there is a strong body of evidence that many of the same aspects of the court process are very stressful for children and vulnerable witnesses and that that stress decreases the accuracy and completeness of their evidence.

Finally, experts criticise the legal system’s divisiveness, and the way it polarises the evidence. The dialectic presentation of any issue can create the appearance of widespread controversy and disguise the actual state of scientific opinion. Counsel are also likely to select experts who are at more extreme ends of any continuum of opinion, thus presenting an unbalanced picture of the relevant scientific facts. Moreover, the very process of partisan selection and the pressure counsel often apply to experts, overt and subtle, to render opinions useful to their argument, can cause experts to render biased evidence. Aggressively partisan cross-examination can exacerbate biases, pushing experts to make rash and extreme statements they would not otherwise support. Partisanship may also imperil any attempts to have experts cooperate to narrow the issues before the court, since not only experts but especially counsel may be unwilling to allow any collaboration.

Thus the court system may be doubly unfit to make use of expert evidence: First, its actors are not equipped to understand the evidence and second the system itself distorts the evidence.

Reform Options

Options for reform can be seen as falling into two broad groups, although there is considerable overlap between them. None of these options is suggested as a panacea and in most cases it is suggested that individual reforms be used in concert with others. First, there are measures designed to improve the courts’ ability to assess expert evidence. Some suggest increasing the threshold test for the admission of expert evidence. Some seek to improve the jurors’, judges’ and lawyers’ ability to comprehend and evaluate the evidence by training. Others instead seek to enlist the expert community to help evaluate expert evidence, suggesting the establishment of a variety of out-of-court advisory bodies and the use of court-appointed experts or assessors. Still others are concerned to improve the systems by which the court receives expert evidence, seeking to create methods such as concurrent evidence, which are easier to understand and which reduce the potential for misunderstanding inherent in conventional methods of evidence- giving. There are also suggestions to limit trials involving expert evidence to judges alone, removing the vulnerable jury.

The second group of reforms ignore the court system in favour of concentrating on improving expert witnesses. These are measures aimed at improving expert witnesses’ grasp of their ethical obligations and performance of their role as experts, from the quality of their substantive evidence to the improvement of their court-room presentation skills. Suggested reforms include that all expert witnesses be accredited, that all reports be peer reviewed, that professional bodies have as part of their professional code of ethics a section on the responsibilities of expert witnesses and that the courts also impose codes of ethics on experts. If experts fail to meet their responsibilities, it is suggested that they be liable to both professional disciplinary acting and to civil actions.

Chapter Two: Methodology


  1. Participants

Participants were selected following discussion with our Advisory Group, Dr Suzanne Blackwell, clinical psychologist, Dr Patrick Kelly, paediatrician and Phillip Hamlin, Crown Prosecutor. With their advice we produced a list of potential expert interviewees and, later, some of them made suggestions via email as to which lawyers we approach to interview. We also chose a few of the interviewees through our own professional knowledge and contacts.

We originally planned to interview around 20 expert witnesses and 10 lawyers. As the study unfolded, we expanded the number of experts to 27 and reduced the number of lawyers to seven. We expanded the expert group because, firstly, because we found that we had a much more willing base population of experts than we had hoped. Secondly, we considered this to be such a rich opportunity it was worthwhile to continue until we were sure we had reached data saturation point. Thirdly, following the initial five to 10 expert interviews we decided to include some additional younger or less experienced interviewees as we were concerned that our interviewees were unrepresentative because of their particularly high level of experience in court. The addition of less experienced people allowed us to explore in greater detail possible factors in expert witnesses’ reported levels of satisfaction with and stress in the courts.

The lawyers’ interviews were conducted after the expert interviews concluded. The group was chosen on the basis of the authors’ professional knowledge supplemented by suggestions from the Advisory Group. Everyone who was approached agreed to be interviewed. Various others also agreed to be interviewed. However, given the time constraints and the clear consensus emerging amongst the lawyers, the authors opted to terminate the interviews.

Inclusion criteria for selection of experts were that they were experienced expert witnesses who were well-respected both by their colleagues and by the courts. We did not interview anyone who, rightly or wrongly, we knew to have been seriously criticised by the courts. Finally, we limited the field to those who give evidence regarding the field of child abuse or neglect, including sexual assault. This limitation was imposed because both authors have professional experience in that field and accordingly would be reasonably familiar with the types of technical information and the legal situations interviewees could be expected to describe.

A very few phone messages were not returned. Of the 44 people we approached by letter, only two declined, both on the basis that they had not given evidence for many years. In addition, we later learnt two or three were out of the country and so did not respond at all. We were then able to find appropriate times for interviews with 27 of the group. No lawyer declined the invitation to participate.

One additional expert was unable to make an interview but sent the interviewer an email detailing some of her concerns about the court process. This was also used in the interview chapter not as an interview but as part of the review process after analysis.

Expert Participants

There were 27 interviews with expert witnesses analysed in this chapter. They included paediatricians, DSAC doctors whose role as experts is to report the results of their examinations of sexual assault complainants, clinical psychologists and specialists from various related medical specialities.

Participants had a wide range of experience as expert witnesses, from 25 years to having started giving evidence just recently. Three had not worked in the courts at all over the previous five to seven years (PA5; PA10; DS16), simply due to changes in work routine. Two were, however,

senior paediatricians working in hospitals with considerable supervisory responsibilities for other expert witnesses. The rest were all currently working as expert witnesses. Estimated appearances per year varied from once to more than 24 times. Many interviewees stressed that their estimates of the number of times they appeared per year were subject to significant variation as sometimes they would be called in several trials in close succession.

Table 1: Expert Interviewees Experience in Court


Expert identifier
Years appearing
Appearance per annum
Courts
Professional area
Last appeared
PA1
10-15
5-10
Crim; once
Family
in
Paediatrician
Ongoing
PA2
5-10
20-25
Criminal
Paediatrician
Ongoing
PA3
10-15
1-5
Crim. & Family
Paediatrician
Ongoing
PA4
20-25
1-2
Crim. & Family
Paediatrician
Ongoing
PA5
25 plus
Twice only
Family
Paediatrician
2005
PA6
10-15
1-3
Crim; once Family.
in
Paediatrician
Ongoing
PA7
20-25
1
Crim. & Family
Paediatrician
Ongoing
PA8
15-20
2-3
Crim. & Family
Paediatrician
Ongoing
PA9
10-15
1
Crim. & Family
Paediatrician
Ongoing
PA10
25 plus
1
Criminal
Paediatrician
2005
DS11
10-15
5-10
Criminal
Medical Examiner
Ongoing
DS12
10-15
2-3
Crim; twice in Family.
Med.Examiner
Ongoing
DS13
15-20
10-15
Criminal
Med. Examiner
Ongoing
DS14
25 plus

Criminal
Med.Examiner
Ongoing
DS15
10-15
4-5
Crim; once Family
in
Med. Examiner
Ongoing
DS16
10-15
2
Crim; once
Family
in
Med.Examiner
2007
O17
5-10
1-2
Criminal
Specialist
Ongoing
O18
10-15
1
Criminal
Specialist
Ongoing
O19
10-15
5-10
Crim; once Family
in
Specialist
Ongoing
O20
10-15
20 plus
Crim. & Mental Health
Specialist
Ongoing
PS21
1-5
5-10
Family & Crim
Psychologist
Ongoing
PS22
20-25
5-10
Family & Crim
Psychologist
Ongoing
PS23
20-25
5-10
Famiy also
Crim until years ago
in 10
Psychologist
Ongoing
PS24
25 plus
20 plus
Fam & Criminal
Psychologist
Ongoing
PS25
25 plus
20 plus
Fam & Criminal
Psychologist
Ongoing
PS26
1-5
2-3
Crim; once Family
in
Psychologist
Ongoing
DS27
20-25
2-3
Criminal
Med. Examiner
Ongoing

Lawyer Participants

Seven lawyers were interviewed, the interviews of which only six were able to be used due to technical difficulties with the recording of the seventh. Only one lawyer we approached turned down an invitation to be interviewed, on the basis of work commitments. Care was taken to ensure only experienced lawyers were interviewed. All had ten years or more experience in the criminal courts, and half had between 20 and 40 years experience. All were full-time practitioners. Two were defence counsel, one of whom was also a senior family law practitioner and four were primarily prosecutors (all ranked as senior prosecutor).394 The discussion almost exclusively focused on the criminal courts and time did not allow the expansion of the study.

Table 2: Lawyer Interviewees’ Professional Experience


Lawyer Identifier
Years in
Practice
Court (chronologically)
Specialism
Experts called per annum
L1
1-15
Mostly Crim, some
Fam
Senior
Prosecutor
6
L2
10-15
Criminal
Senior Prosecutor
10
L3
30 plus
Criminal & Family
Defence Counsel
1 plus
L4
30 plus
Criminal
Defence Counsel
ex-senior prosecutor

L5
30 plus
Criminal
Senior Prosecutor
20

L6
10-15
MostlyCriminal, some civil
Barrister, ex- senior
prosecutor
6

  1. Interview Schedule and Practice

Both the expert and lawyer interviews were semi-structured according to a list of topics. This list of topics and questions was prepared and discussed with the Advisory Group. This is shown in Appendix A. The list was used as a guide only, and the interviewer followed the interviewees’ lead as to which areas they wanted to address, and in what sequence. Accordingly, not every interview covered the same topics or in the same depth although there was a clear consensus on what was important to discuss.

Interviews with both experts and lawyers took about an hour. All of the expert interviews and two of the lawyer interviews were recorded digitally. In the remaining lawyer interviews the interviewer took verbatim written notes.

In both sets of interviews, following an initial rapport-building stage, the interviewee was asked a series of simple questions about the courts they appeared in and the numbers of cases per annum, etc. The interviewer then introduced the series of general topics from the interview guide.

In the expert interviews the interviewer structured the interview chronologically following the court process, starting with what training the person had had in court craft prior to their first court appearance (and subsequently), then moving to contact with lawyers prior to trial then to

394 In New Zealand almost all advocates are simultaneously barristers and solicitors and practice from within law firms. In New Zealand prosecution services are provided by private firms one partner of which has been awarded the “Crown Warrant” for a particular region. A New Zealand Crown prosecutor therefore practices essentially as a barrister within a law firm. Conversely, Defence counsel generally practice solely as barristers, although recently a government-funded Public Defenders Service has been established in some centres.

the examination process. The interview then covered experiences with opposing experts and discussed possible reforms or improvements, including open questions asking for suggestions and some suggested processes, such as concurrent evidence. Finally, interviewees were asked whether the interview had covered everything they felt was important. They were also encouraged to come back to the interviewer in email or in a further interview should anything else occur to them.

During initial expert interviews the interviewer made notations on the list reflecting the areas interviewees had wanted to address or any related issues which had emerged but had not appeared in the original draft of topics and questions. These new issues were then incorporated into the interview guide and used in subsequent interviews.

The interview guide was also modified as it became apparent how much material could be covered in an hour. Furthermore, as the topics experts felt were important became apparent it was possible to anticipate where most time would need to be spent. It quickly became apparent that many questions initially envisaged as separate topics need not be asked as they were almost always introduced by the interviewee naturally as part of other topics. A few questions were quickly discarded as it became apparent the way they were structured was too technical and the material intended to be covered was emerging in other ways. Some questions originally planned for the expert interviews turned out to be irrelevant, such as the differences in the philosophy between the criminal courts and the Family Court when asked of experts who only appeared in the criminal court.

The final set of five or six experts interviews were those with the less experienced experts, as described above, and they were more narrowly focused on the topics the interview considered had emerged as the main concerns of the larger group and were used to test the authors’ emerging hypotheses about the factors in expert witnesses’ reactions to court.

The interviews with lawyers were conducted in the same way as were the expert interviews except that they were more tightly focused than the discussions with experts, since the major purpose was to seek feedback on the comments and descriptions of legal practices by the experts. As with the experts, interviews were semi-structured and interviewees were allowed to develop their own themes, so there was variation in the topics covered by each lawyer.

The approach used with the lawyers was different from that used with the experts in that it was somewhat more challenging. So, initial questions about a topic seeking a free narrative response were sometimes followed by a specific question challenging part of the response where it reflected a criticism of courtroom practice made by experts. For example, lawyers might be first asked how much time they spent briefing experts and then, when their response indicated they generally spent very little time with experts, they would be challenged that experts often reported finding this very difficult.

This way of interviewing was felt appropriate in part because the interviewer knew many of the participants well professionally (although none were current colleagues or in any way dependent on the interviewer) so there was already an established level of trust which meant that it was unlikely the lawyers would feel affronted or threatened. Further the interviewees and the interviewer were all criminal lawyers and had a shared professional culture in which challenge and argument are enjoyed and expected. For example, one practitioner, whom the interviewer did not know professionally, opened the interview by inviting debate with a strong challenge to the interviewer regarding one of her recent articles. It also helped that, in the hierarchical professional world of law, all of the interviewees were senior to the interviewer in courtroom experience, so that the interviewer’s challenges were less likely to be perceived as threatening. All of the lawyers appeared to respond well to this approach.

  1. Procedure

Ethical approval for this research was given by The University of Auckland Human Research Committee. Their approval required the use of standard participant information and consent

forms, and a commitment to store interview transcripts and the master list of interviewee names securely for the prescribed length of time (see Appendices B & C)

In most cases initial contact with participants was via a one-page letter (sent by email) setting out the project, details of the authors and the advisory group that it had ethics approval and who was its funder, and that their participation would be kept confidential. In some cases, especially where the lawyers were concerned, the interviewer spoke briefly to the potential interviewee to ascertain whether they would be interested prior to sending them the formal invitation letter and forms. In some cases a follow-up email was required to ascertain whether the person had made a decision. A schedule was kept of all contacts and copies of all emails etc. were retained.

The interviews with expert witnesses were conducted between July and November of 2012. The lawyer interviews were only undertaken after the expert interviews and their analysis were complete. This reflected the fact that the purpose of the lawyer interviews was in part to review the experts’ responses (see Chapter Four).

Almost all the experts were interviewed by telephone or by Skype. The initial intention had been to conduct most interviews in person. However, when offered the option most interviewees preferred the remote option as it gave a far greater degree of flexibility in arranging the interviews and was much less disruptive to their schedules. As the interviewees were widely scattered across the country this was a development for which the interviewer was profoundly grateful. We did not find that remote interviewing impeded the process or diminished the rapport between participants and interviewer, as is shown by the frankness with which the interviewees spoke. Conversely, as will be discussed later, almost all of the interviews with lawyers were conducted face to face, by their preference, and these interviews seemed to go equally well. Most of the interviews, for both groups, took around an hour to complete. In a very few cases a second session was necessary. That we managed to cover all of the experts’ concerns reasonably comprehensively was indicated by the satisfaction all the experts expressed in answering the final question about whether there was anything they felt was important that was left unsaid.

Following the interviews the interviewer emailed her thanks to the participants and there were occasional contacts thereafter regarding such things as details needed for the tables showing participants’ experience in court or following up on consent forms.

As described above, all of the expert interviews and two of the lawyer interviews were recorded digitally. Three interviews (two with experts and one with a lawyer) out of the total 34 were damaged in the recording. Two were still able to be used, although only about half the interview was recovered. The other, an interview with a lawyer, was not recoverable, although this lawyer’s responses were very similar to those of her colleagues. The recordings were transcribed by a professional legal typist, who had signed a confidentiality agreement, and the accuracy of the transcripts was then reviewed by the interviewer.

A draft of the chapter analysing the expert witnesses’ interviews was sent to the experts via email in late December 2012. The lawyers were sent the draft chapter in early February 2013. 24 of the experts and all of the lawyers had responded at the time of writing. Around half of the experts asked for a few details they thought might identify them to be removed and one lawyer corrected a detail. These quotes were all amended as asked. No one queried the accuracy of their quotes, the interpretation or any other substantive aspect of the chapter. Most responded by commenting that the chapter accurately reflected their experience. No one had any negative comments. No one sought to withdraw from the study at any stage.

  1. Data Analysis

We analysed the interviews using Thematic Analysis, guided by the practical descriptions of this methodology given by Braun and Clarke 395 and Boyatzis396. A thematic analysis seeks to identify groups of ideas or “codes” that exist within the data and to then organise these into higher order “themes”. It is a more inductive process than content analysis as the themes or categories are not predetermined prior to analysing the data. Our analysis method was modified to an extent in that, as described above, we had introduced certain subjects or codes into the discussion during interviews, as well as inviting considerable less-structured free-narrative response.

The literature review was drafted prior to conducting the analysis of the interviews. While this risked influencing or constraining the interpretation of the data, it was felt that, provided the authors kept the possible risks in mind, and ensured that the literature reviewed was broad and well-balanced, knowing the concerns expressed in the literature was also enriching. It sensitised the authors to the range of issues they might otherwise have overlooked.

The first author conducted the first stage of the analysis with only limited discussion with the second author, with the exception of the more extensive consultation around the issue of expanding the interviewee pool for greater balance. This relatively independent process left the second author able to conduct an extensive review of the initial analysis later in the piece (discussed below).

First, all transcripts were numbered by paragraph. Five interviews, chosen purely on the basis that they were the first completed by the transcriber, were then used to generate a set of codes, each code representing a discrete piece of information or opinion. The five transcripts were each analysed in this way, and independent lists of codes were produced. These lists were then consolidated into one, including references to where the codes appeared in each transcript. This list was then used to guide, but not constrain, the coding of the next group of interviews. New codes emerged constantly and were added to the list. As well as adding completely new codes as they emerged in new interview transcripts, often the repetition of an idea in a new interview made sense of or highlighted the significance of previous mentions in interviews analysed earlier. In either case, each new code required the previous interviews to be re-read in search of relevant comments. Care was taken at all stages to ensure that all shades of opinion on each major topic were recorded and that absence of comment was also noted.

At the end of the second group of interviews the list turned into a spread sheet and all the referenced paragraphs were pasted in verbatim. This involved considerable repetition where paragraphs referenced various codes.

At the second step, the data were examined for relationships between codes. Where there was a close and meaningful relationship between respective codes, these were combined to form a theme. Themes were then tentatively organised into several general topics, although a number of stand-alone codes and themes remained. Thus, cross-examination became a topic, with the sub-topics of cross-examination, and experts’ responses to cross-examination. Within the subtopic, cross-examination themes included confusion and trickery.

When all of the interviews had been analysed and entered into the spreadsheet all of the data categorised under each theme was analysed, defining areas of agreement and disagreement within themes (such as enjoyment or dislike of cross-examination). New themes and subtopics emerged from this process. Some themes were collapsed together where it was realised they were repetitious; others were split apart to form sub-themes.

Out of this process came the first written account of the analysis. Again, all of the quotes which had generated the analysis were all present in the text. At this point the spreadsheet and the

395 Braun V & Clarke V “Using Thematic Analysis in Psychology” 3 (2006) Qualitative Research in Psychology 77-101. 396 Boyatzis, R. E. (1998). Transforming qualitative information: Thematic analysis and code development. Thousand Oaks, CA, USA: Sage Publications.

first analysis were given to the second author to review. While his organisation of the themes was sometimes different he largely agreed with the analysis by the first author. The themes, topics and sub-topics defined in the earliest lists largely survived the analysis process. The writing of the analysis then proceeded to the stage where a draft was submitted to the participants.

When quotes were to be included in the text of this report, they were edited of identifying details. They were also edited of extraneous fillers such as “you know”, “I think”, “and”, “well” and “so” where those words did not relate to the meaning of the quote and did not appear to be intended as qualifiers. Where a speaker began a sentence and then restarted it, as often occurred, the restarted version was used and the false start edited out.

The interviewer’s questions are indicated in square brackets where necessary. While sometimes the question is identified separately, more often the bracketed question is inserted into the response (as in No [I do not enjoy cross-examination]).

Finally, in order to improve their comprehensibility, quotes were edited of extraneous ellipses (“ . . . “ ) except where the subject of the quote was not touched on for several paragraphs, when the ellipsis was indicated by “[ . . . ]” followed by the next paragraph number.


Chapter Three: Interviews with Expert Witnesses


  1. Introduction

This chapter concerns the substantive analysis of the transcripts of the interviews with expert witnesses. It is divided into five sections. The first considers the experts’ perceptions of their role in court, including their ethical responsibilities and level of willingness to participate. The second considers the main difficulties they find in presenting their evidence, including issues with the competence of fact-finders and lawyers to assess their evidence, and a range of issues to do with the actual process of testifying including briefing, examination in chief and cross- examination. The third section examines the experts’ opinions of the way in which opposing expert evidence is handled in court. The final two sections are both concerned with improving the court process: The first considers experts’ own self-help strategies for managing their work as witnesses. The second considers a series of reform options from measures which are achievable within the current system to those which would require more significant changes to practice.

  1. Experts’ Perceptions of Their Roles
2.1 Neutrality: The Expert’s Duty to the Court

Most of the interviewees discussed their ethical responsibilities as expert witnesses. All were very clear, emphatic even, that they appeared as independent and neutral experts whose responsibility was to the court or jury.

[I work for] [t]he court. So I don’t work for either side. I will tell either lawyer what they don’t want to hear. (DS13)

My responsibility is to the court, certainly not to the Crown, it’s not to the defence, it’s not to the defendant. My responsibility really is to the court to give a sound opinion based on the evidence I have because even though I tend to work the majority of the time for the police and the Crown and the coroner I’m not a Crown witness as such. I am an independent expert. (O19)

Against this background of a strong commitment to the neutral role appropriate to an expert witness, in several instances experts also discussed feeling an ethical responsibility to other participants in the court process.

Many described having once perceived themselves as having a duty to advocate for their patient through their evidence, but went on to say they realised this was not their role.

Until you learnt that that was your role and it was ok to have that role, you felt inadequate if you weren’t able to be there as the patient’s advocate, and that was obviously a very wrong situation to be in as an expert witness. That is not your role at all. You were there to tell what you saw and to help the court interpret that correctly. (DS14)

However, a few experts still felt they had duties in addition to those to the court. Two experts appearing primarily in the Family Court felt responsibility to the child or children in a dispute.

In the Family Court it’s a bit more difficult because basically a lot of your evidence is going to be about children. [I]n a sense in the Family Court I have two clients. I have the court but I also have the child or the children because realistically I think that they don’t get a voice really. That’s a more difficult time and situation because adults are so powerful at using systems and the Family Court is all adults and, ok, the judges now see the kids but that’s a very glib kind of positioning of the child. So I suppose I am more thoughtful in the Family Court of trying to make sure that I in some way represent the children’s issues as well as the wider issues to the court. In the criminal jurisdiction I don’t do that: I just present the psychological data. (PS24)

Similarly, two criminal court experts said they felt a duty to the child complainant.

[My duty is] [t]o the child. As much as it’s a pain doing this [court work] and none of us enjoy it, nor do we enjoy going along and seeing these children in intensive care, intubated, bruised, drains coming out of everywhere. I feel a very strong duty to go along and try and make someone answer for what they did. (O18)

Nonetheless, both also stressed the overriding duty to the court:

[I am] just trying to be objective. You know, you say before you go along you want someone to answer for it, some of these children’s injuries, but you have got to make sure you don’t get sort of emotionally caught up in the whole thing. (O18)

Nearly a third also commented on their feelings with regard to the complainant or the accused, in addition to their ethical duties to the court. A very few, like the expert quoted above (O18), also discussed feelings of anger towards the accused and a desire to see him or her punished. However, in every case they acknowledged that these feelings of sympathy or condemnation were to be put to one side, and all of them stressed their impartiality and overriding duty to the court. While the experts were clear about their own responsibilities, however, a few expressed a concern that the rest of the justice system does not have confidence in their impartiality.

2.1.1 Willingness to work for the defence

Anecdotally, the researchers are aware of a perception amongst some defence counsel that many experts, especially those regularly called for the prosecution, will not work for the defence. Around half the experts were asked whether they were prepared to take defence instructions. Almost all were willing and many already did so. This response was typical:

I’m prepared to act for the defence, I’m very happy to act for defence but I have never been asked. [Or rather] I have been asked once and I looked at the material and I said what I would say and the defence chose not to use that evidence. (PA3)

The one exception to the general willingness to work with defence was probably one of those who had most experience of actually doing so.

I’m now in the situation where I’m not really all that interested in being engaged by defence counsel because I just simply can’t be bothered with all the game playing that goes on. (O20)

His reluctance stemmed from his belief that many defence counsel apply considerable overt and covert pressure to experts so that they would produce opinions useful to the defence (discussed below).

A few experts also commented that they had no objection to speaking to defence counsel even when they had been called by the prosecution. Two experts had in fact met with defence counsel

and found it worthwhile as a way of educating the defence about the evidence and reducing discussion of unnecessary issues in cross-examination.

I’ve gone to the defence lawyers and have sat down with them and they have asked me a whole load of questions. Defence [initiated the contact] and that was really helpful [so] they could just call in court the things that they needed. I don’t have an issue talking to defence lawyers. (PA1)

Generally then these comments would tend to allay concerns that experts are not prepared to appear for the defence.

2.1.2 Forensic v. clinical roles

In addition to having a basic awareness of their ethical responsibility to be impartial, some experts, particularly those in DSAC or with DSAC training, emphasised the need to adopt a forensic rather than a clinical role in court and in report writing. They were very attuned to the difference between the roles and the difficulties a clinician’s mindset could cause in court.

They described a clinician’s role as one of caring for the patient (both in terms of offering treatment and emotionally) and as including an element of advocacy for the patient. Further, in caring for the patient the clinician is unlikely to question the patient’s history. Finally, the clinician in coming to conclusions deals in what is “most likely”, and is prepared to make educated guesses about the correct diagnosis. Conversely, a forensic expert witness is a neutral investigator who does not accept the patient’s history unreservedly and who will consider remoter possibilities.

[The forensic role] has also taken quite a long time to learn so [training] is important because it’s not easy for doctors to learn. The bulk of doctors in New Zealand never see offenders, they only see the victims and don’t get any specialist training in forensic medicine. [A] lot of them are GP’s so they come from that environment where they are nurturing and caring so they do find it very difficult to remove themselves from that and to work only as an impartial assessor. [I]t can get quite muddled for a lot of doctors because they don’t know how to remove themselves from the situation, to provide a balanced opinion. So that’s why the [DSAC] training is so important. (DS13)

The forensic mindset was a relatively recent introduction to New Zealand’s expert witnesses in the field of child abuse and neglect. Several DSAC doctors referred to the organisation having made the decision to inculcate a forensic perspective in trainees over the last few years. They charted the change in DSAC philosophy to the exposure of some of the membership to masters’ education and training courses in Australia.

2.1.3 Adversarial bias and the expert witness

Some experts raised the potential that the adversarial system of appointment and examination itself exerts pressure on experts to become partisan. As has been said, all of the experts were clearly aware that their primary duty is to the court and that they are to be neutral. However, some commented on the potential of the adversarial system to create bias in witnesses where none previously existed.

One thing you become increasingly aware of as an expert is that depending on which side has engaged you the nature of the information that you get and the bias that you are subjected to because of that can be quite significant. I pride myself on this idea that it doesn’t make any difference who asks my opinion, the opinion will be the same but I think the reality is that it’s impossible to achieve. [ . . . ] A lot of pressure is placed on expert witnesses to provide an opinion which support the side that is engaging them. (O20)

Partisan appointment itself was sometimes seen as potentially corrupting. The need to counteract this unconscious bias was the reason a couple of experts welcomed the opportunity to work across party lines.

[O]ne of the things we talked about there [in training] was about how important it is to be an independent unbiased expert. [But] what does that really mean? [There are] things I have written in reports that I thought were quite unbiased, but when I actually became a defence expert I thought “wow, I’ve been saying that for all this time and I didn’t really realise how it sounds”. That, for me, is a very important lesson and so after that I thought to myself “right if a defence lawyer asks me to provide an opinion I would,” so I’ve been doing that for quite a few years now and it’s been very good, very good for me and very good for DSAC because it improves the quality of our work. (DS11)

I am there to assist the court and I don’t want to be seen as a defence expert or a Crown expert. I want to keep that independence. (PS25)

Similarly, the absence of partisan pressure and the concomitant protection of one’s neutrality was the reason several experts preferred appearing in the Family Court as a court-appointee.

I think it’s really clear in the Family Court because it’s really clear that you are the court’s witness, and they make that really clear to you, and you’re employed much more closely and directly by the court. (PS22)

[G]radually I stopped agreeing to do any of those appearances for one party. [ .

. . ] [b]ecause it felt unbalanced. It just felt to me for the family it worked better if someone seemed to be neutral and appointed in the middle. (PS23)

Several highly experienced experts went on say that they had been subject to more overt pressure from the lawyer calling them.

Some defence counsel want to meet with you first to gauge whether you are an expert witness who might be able to be manipulated into providing an opinion which is going to be supportive of their side or whether you are not going to be manipuable that way. I recently had that kind to meeting with a QC [where] I made it fairly clear that I was not the manipulable kind and that led to a termination of our engagement relatively early on. (O20)

Two identified defence counsel as a source of pressure.

It’s much less of a problem when you are being engaged by the court, and it’s relatively less of a problem when you are being engaged by the Crown, but it is a massive problem when you are being engaged by defence counsel. (O20)

This person stated that he had experienced defence counsel promoting perjury.

There are certain defence counsel that none of the experts I know will work with anymore because they are so dishonest. The things that I have seen and been a part of – some of them are extremely inappropriate. I’ve seen defence counsel encourage witnesses to lie on the stand. (O20)

He also criticised defence counsel for withholding information, calling this a “massive problem”.

I see experts appearing for defence counsel all the time where they have been provided with some, but not all, of the information, or where their opinion appears to be based on a somewhat one-sided selection of the information. (O20)

A couple also commented that the defensiveness engendered by cross-examination from any lawyer makes it difficult to remain neutral and can lead some experts to take a harder line than they would otherwise.

Both the experts who criticised defence counsel drew a sharp distinction between them and Crown Prosecutors, saying that prosecutors were less likely to pressure experts.

I’m open to being engaged by the Crown much more readily because I think they are generally more honest in the way they go about things. (O20)

Conversely, another somewhat less experienced expert commented:

[M]y experience of lawyers, and particularly defence barristers, [has been unexpected]: I thought that they would be trying to lean on me for an opinion. [But] I’ve been quite surprised and quite happy with how psychologists and lawyers can discuss issues and up-skill each other I suppose, because I think there’s a lot of negative stereotypes about lawyers out there and it certainly doesn’t ring true. (PS21)

It is interesting to consider that if prosecutors are less likely to pressure witnesses that may be because their role is explicitly tempered by a duty to consider the public interest in prosecution, thus they are themselves in a much more neutral position than are defence counsel.

2.2 Experts’ Opinions about Participation in the Court

One of the initial prompts for undertaking this study was to investigate anecdotal reports that many experts are reluctant to participate in court cases, and, if any such reluctance was uncovered, to investigate its causes. This section considers first the interviewees’ own feelings about acting as expert witnesses and then considers their comments about their colleagues’ willingness to come to court.

2.2.1 Interviewees’ feelings about court

Most of the experts to whom we spoke dislike appearing in court and they believe most of their colleagues wish to avoid doing so. This sub-section discusses the experts’ feelings about court appearances, the aspects of the process which are most stressful and the factors which reduce their stress.

Only a few experts commented that they enjoyed court appearances. All were extremely experienced witnesses who attended court frequently, two in the Family Courts and one in the criminal courts.

I actually quite enjoy it now. I quite like the challenge. (PS23)

Several others “did not mind” or had “learnt not to mind” court appearances. Of these, three were extremely experienced, whilst one was a less experienced witness but a very senior paediatrician. Three were largely criminal court witnesses.

It just goes with the turf. It doesn’t worry me. (PS24)

I don’t mind it actually. I used to get terribly upset about it but now I don’t mind it. (DS12)

However, enjoyment was not regarded as a normal response to court.

As a rule I would say most of them [colleagues] absolutely hate it. There is one particular person, her attitude is just “bring it on I’ll have a debate on the stand,” but she would be one of the very few and far between people [w]ho enjoys the sort of challenges or cut and thrust. [But] most doctors I would say find it very uncomfortable. (DS11)

Almost all the interviewees acknowledged finding court cases significantly stressful, including those who said they enjoyed or did not mind their appearances.

It [is] an unpleasant sort of time: We are required to do as part of our jobs. I would rather not be involved in it. [I]f there was one of my colleagues who said

“I’ll be the person to go along to court and present in all these places”, I’d jump at it, it’s not something I look forward to. [ ] It’s quite intimidating. (O18)

[S]ometimes you feel like you have been run into the ground. [There is] [a]nxiety at the time you are giving the opinion because I feel a huge pressure to actually do it right. [I]t starts well before the trial. [Y]ou don’t want to err [on the side of caution] and the child suffers and you do harm, but then you actually don’t want to err in the other way and cause a family huge disruption and grief. [I]t weighs really heavily on you. Often there’s pressure to produce an opinion like, at the snap of your fingers. I have to think about it. [I]t’s not instantaneous and it’s dangerous when it’s instantaneous. [In one trial] “I nearly started crying when I started reading it [the brief] because I looked across at the jury and the horror of it suddenly hit me. (PA8)

Over a third of the interviewees described court as “stressful”, five qualifying the description as “hugely”, “incredibly” and “very.” Many described feeling “apprehensive”, suffering “anxieties”, “dread”, or being “terrified” or “really frightened” while three very senior experts (two male and one female) described court as “intimidating” or “very intimidating” and two others, also very senior, described it as “threatening” or “very, very threatening”. Three called court “scary”. Others called it “distressing” and sometimes “painful,” “awkward” and “upsetting.” One referred to having been “dismembered” on the stand and to lawyers being ready to “take [opposing experts] to pieces”. Another referred to early cases in which “I just died.” Several also described some court appearances as “traumatic”. A significant number described court appearances as “frustrating”; even “very” or “hugely” frustrating.

Several described the stress level beforehand as similar to that before an important exam:

[Y]ou actually dread [court] it’s like getting into an exam and not knowing what’s going to be on the exam paper because it could be on any subject.” For a person who is untrained and not used to it it’s incredibly stressful. (O19)

The isolation and vulnerability of the expert in court was also occasionally remarked on:

And sometimes, the very odd occasion, you’ll have the judges or the lawyers raise their voices at you: there are times when there is nobody there for you. And there’s nobody there to represent you. There have been a couple of quite recent cases where judges have turned on people and made it very, very difficult for them, and you can’t say “I object”. (PS22)

Many experts also experience stress due to concerns for the complainants or victims about whom they testify, both in the trial and afterwards.

There was a particular court case where this 15 year old who had been doing incredibly well [was raped]. [The defence counsel] shut me down so the information I should have shared I didn’t and he in fact then managed to tell the jury that the girl had inflicted [her own injuries]. [T]his girl dropped out, went wrong: Gone, you know. The whole process had destroyed her career. And I grieve for her because she had so much future potential. [I]t was one of those ones that just smoulders along in the background and distresses you badly and the process was abusive to this kid. (PA4)

Many, like the expert quoted above, suggested that the stress they felt while giving evidence had decreased the quality of their evidence:

I felt very incompetent on the stand. He was portraying me as incompetent: [Like] I hadn’t done a thorough job and my evidence had missed this and there was really nothing to base it on. Everything was quite dramatic and his approach made me feel quite nervous because it felt like he was getting

impatient with me because I wasn’t answering the questions the way he wanted and I was doing my best. [I]t became quite traumatic. [ . . .] He would look at the judge and roll his eyes. [A]fter an hour I was exhausted. I probably wasn’t thinking very well. (PS26)

Well, I vividly remember my very first one. I went into the court, I walked up through the middle of where there were people waiting and I just came to a seat and I sat down and the usher said “Don’t sit down!” I thought “Oh my god”: That completely threw me. So I got up and I had no idea what was going to happen next or anything and I was flustered because I had done the wrong thing in the first place. (DS11)

It was clear that for many the stress they feel during the court process often does not end at the courtroom door. Many experts described particular incidents (almost invariably involving cross-examination) they had found extremely upsetting at the time and which caused ongoing worry and internal recriminations.

I just fell on my face [in court]. I think badly on my feet and I came away later and re-litigated in my head for hours. (PA4)

Many reported that their early experiences in court had been especially frightening, “a bit of a baptism of fire.” They often described finding their anxieties had decreased and their ability to negotiate cross-examination tactics had improved with experience. However, it was clear that the stress did not disappear entirely even for highly experienced witnesses.

That [case] was huge. I didn’t sleep for days afterwards: I thought “oh good, I’ll sleep now” and [still] I didn’t sleep for days after. It took me that long to unwind. (DS12)

I used to [find it very upsetting]. [S]ometimes I am pretty anxious now. [Y]ou are always a bit nervous when you go in and I often get a bit flustered. I get a bit of a headache afterwards and I think that’s stress signs and you always feel better when you finish. (PS23)

Nonetheless, only a few of the interviewees had stopped or cut back on court work due to stress.

At the end of the day they were just a stress and a pressure I didn’t need. (DS14)

Others who had withdrawn from court work did so for other reasons (a change of role or a conflict with a spouses’ work in the courts). One other mentioned that their family would prefer they cut back on court work because of the strain.

While most of the experts in this group are prepared to continue to work as witnesses despite their concerns, it was a very different story for most of their colleagues.

2.2.2 Reports of colleagues’ reluctance to participate

Many interviewees said that their colleagues are generally extremely reluctant to participate.

I think most doctors avoid work that ends up in court. [M]ost people are horrified at the thought of going to court. I don’t like it but I signed up to this job knowing that that would be part of it. [M]ost paediatricians would avoid it if they could and most do so, handing it off to someone else or not getting involved in the case in the first place. (PA2)

Several also mentioned colleagues who had stopped working as expert witnesses due to the stress and inconvenience.

I know it’s been very hard on one of my colleagues who has appeared in a number of cases. He sounded extremely stressed. His expertise has been contradicted. The whole atmosphere of conflict in expert witnesses is very off putting to anybody who appears as an expert witness. (PA5)

I have just had my colleague give it up: Not that he didn’t think the work was important but he just could no longer stand the hanging around and getting beaten up by defence lawyers. He was feeling invalidated and unvalued by the process and so he bailed out. [O]ne day he turned up and they spent the first day arguing about his credibility as an expert witness; they really gave him a really hard time. And then eventually he was accepted as an expert witness but he had to stay overnight and then be cross-examined the next day and that was just too much out of his life. He decided he wasn’t going to put up with that rubbish anymore. (PA4)

A few experts commented that the risk of going to court dissuades some doctors from undertaking any child protection work. One told how a colleague who had had a recent bad experience in court refused to treat a child who may have been abused because she feared further involvement in criminal proceedings.

[Q]uite [a lot of the] reluctance of doctors to be involved in child protection is because of the fact that there’s an intersection [with] the criminal justice system. I think that’s a huge part of it. (PA8)

The factors seen as dissuading doctors from participating as expert witnesses were the same as those which the experts themselves found hard, especially the inconvenience and the perception that being in court would involve aggressive attacks on their competence.

[T]he major fear particularly [of most paediatricians] is around challenging your credibility because that attacks the heart of your professional reputation and in specialist practice reputation is everything and that’s what’s attacked by some defence lawyers. (PA3)

A few also mentioned the fear of disciplinary action as a reason to avoid court.

I would not want to be a starting psychologist now, I think it’s quite a hostile environment: People are really skilled at how to deal with experts in a way that they weren’t before. [A]nd I know some of them who have done one or two reports and got a complaint to the Psych Board: Well, that usually shuts them down. (PS23)

A few also mentioned their belief that experts in the UK are less prepared to come to court since the Meadow debacle and their feeling that that might happen here.

I am not sure how much of an influence it is but that whole thing in the UK that child protection in general where paediatricians were struck off the medical register: You know, who’s going to put themselves in that position? [T]he whole thing of child protection is so difficult: Paediatricians have been taken to the Health and Disability Commission for making a report and even though you’re entitled to under the law, under the Commission’s code, if the parents don’t feel that you’ve communicated with them properly or treated them with respect of whatever, they can get you. (PA7)

A few experts also raised individual temperament as a factor that contributed to reluctance to being an expert witness. They noted that often clinicians tend to be gentler or more introverted people who are interested in caring for others and that such people found the combative atmosphere of the court particularly difficult. Several also remarked on the need for expert witnesses to be confident in order to be successful as an expert witness.

[S] ome [of the reluctance to testify] is about not liking the adversarial system, particularly amongst gentler people, people who find the whole thing very threatening. If they are a more robust person they might manage better but gentler people do find it very intimidating. There is such a contrast to your normal daily role which is treating people, believing what they say and them

listening to what you say and them believing that without being questioned so going to court is totally different and that’s what puts people under stress. (DS11)

Those who try to encourage peers to get involved made it clear that doing so is an uphill task.

2.3 Summary

It appears that, first, experts are very conscious of their responsibilities to the court and strive to remain impartial. Although some are emotionally affected by their work they know to separate those reactions from their work as expert witnesses. Whether they are always successful is another matter, but their high level of awareness is encouraging. It is also encouraging that almost all are fully prepared to take instructions from either side and that some in fact welcome the opportunity to appear across party lines as a way of maintaining their neutrality.

Second, less encouragingly, the participants almost all clearly dislike appearing in court, their attitude rarely rising above resignation. Further, they believe that most of their colleagues are highly reluctant to undertake work as expert witnesses, even to the extent of avoiding cases or even specialities which might lead to a summons.

  1. Issues in Presenting Expert Evidence

A series of issues were identified by the experts as presenting barriers to the proper evaluation of their evidence. The first is the competence of other participants in the criminal justice system namely jurors, judges and lawyers, to understand their evidence. A second issue is the quality of experts’ interactions with lawyers, including the adequacy of briefing procedures. It quickly became apparent that experts see briefing as highly important. A third issue is that many experts have serious concerns about cross-examination as a means of testing their evidence, regarding it as obstructive, confusing and misleading. This became a stand-alone section to reflect is importance to experts. The next issue is the quality of the expert witnesses coming before the courts. This was a topic largely introduced by the experts themselves. Experts described a range of issues with other experts, including bias, unethical behaviour and lack of real expertise. Fifthly, experts identified time management and scheduling of court appearances as a major issue. They reported the frequent rescheduling of their appearances and long waiting times at court.

3.1 The Competence of Fact-finders and Lawyers

This section addresses experts’ perception of the ability of the juries, judges and lawyers to understand their evidence. It was clear that many experts have serious concerns about the comprehension of all of these lay people. Further, their concerns intensify where the evidence is particularly complex and there is conflict between expert witnesses. One important aspect that emerged from these discussions was their concern not only at the level of comprehension of the substance of the evidence but at their ability to assess the competence and credibility of the expert witnesses, especially where there were experts called for opposing sides. They were highly conscious of the impact of peripheral factors on lay people’s assessments of themselves and their evidence and sought to manipulate those factors to improve their impact upon the fact-finders, whether judge or jury.

3.1.1 Juries’ competence to understand expert evidence

The experts’ only opportunities to gauge the jury’s comprehension were their observations in court and their reading of the verdict. Thus their comments have only limited significance as proof of the jury’s actual understanding. There is a full discussion of the empirical research evidence as to the jury’s understanding in Chapter One. The experts’ observations are included for two reasons: First, some of their comments do at least raise concerns about the jury’s comprehension. Second, their beliefs about the jury’s comprehension are an important part of

their experience of the jury trial: In particular they reflect an anxiety amongst some experts that they may be unable to make themselves understood and so contribute properly to the trial.

Nearly half of the experts indicated that they did not believe that juries have a good ability to comprehend their evidence. Several described watching juries “glaze over and switch off,” while one commented that she had seen some jurors apparently asleep.

I just don’t know that juries can understand most of the information. Because it’s weeks and weeks of complex medical information to 12 poor people. (PA8)

I have certainly listened to a few people in court when [waiting for my turn] and I sit there and go “the jury are never going to understand a word you’ve said. [I]t’s all very good [and] you know exactly what you are doing but the jury has absolutely no idea”. (PA2)

A further few said they thought that the lawyers and judge could facilitate the jury’s understanding and produce an adequate result. This suggests that they did not regard the jury as able to assess their evidence unaided. No one unreservedly endorsed the jury’s comprehension or said that they had no anxieties about the jury’s comprehension.

Experts’ concern about the jury’s comprehension intensified where there was conflicting evidence from opposing experts. A number commented that they believed juries were not able to determine which of two opposing experts was more authoritative.

[Where there is conflict between] expert witnesses who have completely opposing views and how’s the jury even to make sense of that? I don’t think they can. (DS15)

Instead, they suggested either that juries chose to believe the most likeable expert or simply that the competing experts cancelled each other out and juries chose to discount their evidence entirely.

And the problem was that [in] the end [of that case where there was conflict between two experts] the jury just gave up on the expert witness stuff and went for the fact they didn’t like [the main witness]. (PA4)

Another expert described the jury as misunderstanding the nature of expert evidence in that they demand too much evidence and too much certainty. This was the only direct reference to the “CSI Effect” in this study.

There’s a lot more CSI stuff happening as well where [juries ask] “well where’s the video that that happened, where’s the fingerprints and the DNA?” and you’ve got no evidence of that. [T]hat CSI effect is quite difficult. [J]uries want proof, whereas most of the things I go to it’s no proof, it’s going to be all circumstantial. (PA2)

Two issues in addition to those discussed above were flagged in relation to both juries and judges’ assessments of expert evidence. These were, first, the influence of widely held prejudices and misconceptions about sexual assault on their preparedness to accept expert evidence which conflicts with those perceptions, and second, the impact of extraneous or peripheral factors on their evaluations of experts.

Some experts raised as an issue the prevalence of rape myths as an issue with jury’s comprehension, and also as an issue with lawyers and judges’ comprehension.

The problems with sex trials is the ingrained and un-shiftable mythologies and expectations that people have. (DS13)

They often believed juries still demand corroboration for sexual assault allegations.

I think juries do decide to ignore expert witnesses they don’t agree with. It goes back to their own bias and I guess sexual abuse [has attached to it] the

whole thing about “if someone has been sexually assaulted there must be some evidence”. (PA4)

The demand for corroboration was most commonly a demand for signs of injury. Several experts commented on the persistence of the false belief that penetrative sexual assault will leave injuries, especially on children, and the way in which defence lawyers often seek to exploit that belief.

[T] he impression in the community is that if you look at someone who’s been sexually assaulted it will show. But, as we all know, mostly it doesn’t. (DS27)

The demand for corroboration could also be seen as part of the CSI effect discussed in Chapter One, where modern juries are said to expect more concrete evidence.

Second, many experts were concerned over the impact of “really superficial” peripheral factors (e.g., their attire and personality) irrelevant to real expertise on decision-makers’ assessments of their evidence and competence.

I feel more like it’s a performance and more my appearance and mannerisms that matter: More, often, than the evidence. (PA9)

What you wear matters. [M]y clothing is important because of the role I play: Because people need to believe what I say and if I don’t wear a certain level of clothing they won’t believe me because I don’t look like “the doctor who knows”. (PA6)

There was considerable concern that these superficial factors can skew the fact finders’ appreciation of the substantive evidence and of the expert’s credibility and competence.

But personality will invariably play a part as well: Maybe someone was a lot stronger in terms of the way they present themselves and it’s not only threatening but it can also jeopardise the weight of your evidence. (DS15)

Experts’ responses to these issues are discussed in more detail under “Self-Help” below.

3.1.2 Judges’ competence to understand expert evidence

Experts saw judges in two capacities: As arbiters and legal decision-makers in Family Court hearings and pre-trials and criminal trials and pre-trials; and as fact-finders in Family Court and criminal cases.

However, it should be borne in mind that most of the experts we interviewed only appeared in the criminal courts. The vast majority of child abuse and neglect or sexual assault trials are decided by jury, in which case experts’ opportunities to assess the judicial understanding of their evidence would be limited. Otherwise, their only opportunities to hear the judges’ thoughts would be on those limited occasions in which they appear in pre-trial evidential hearings, over issues such as Mode of Evidence (which almost exclusively utilise psychologists as experts) or the admissibility of expert opinions. In very rare cases experts also appear at appeal hearings. As one commented:

I really have very little interaction with the judge at all and whenever I have been there the judge doesn’t really speak to me you know. He says “well you can stop there” or “that’s enough.” Rarely do I have much interaction with the judges at all. (DS12)

Our experts’ opportunities to assess the judges’ understanding were also limited. Most heard only the bald facts of a decision or questions or comments made by the judge during the expert’s time in the courtroom. The experts told us that they almost never attended any aspect of the trial after they gave their own evidence, unless, rarely, they observed an opposing expert testify. None mentioned having listened to a judge sum up the case or to sentencing decisions following

a guilty verdict. A few received copies of Family Court decisions. The exception was those experts whose evidence had been the subject of an appeal. In these cases they demonstrated a keen awareness of the appeal court judgments. This was also true of not only the particular expert concerned but also of at least some of his or her colleagues, especially DSAC doctors, who as an organisation clearly pay great attention to relevant legal rulings and appear to have an excellent dissemination process. We noticed keen interest amongst DSAC doctors to any incidental comment the interviewer made about case law or procedure (e.g., the rules on a witness “sitting in” on another’s evidence).

However, most still had misgivings about some judges’ competence, including some who are quoted praising judges above. Several called judicial competence “variable.”

Some believed that judges in the specialist courts were more competent in dealing with expert evidence than criminal court judges.

[W]hen there’s opportunity to specialise, that creates opportunity for the advocates and the judges to become much better trained in the science of the area, [the] forensic science, [or, in] Family Courts [issues in] separated parents [and], offenses [of] abuse and neglect on children, for example. You get better judgments and better intervention. I think the level of expertise is greater in the Family and Youth Court matters than in the criminal court. (PA3)

Over half voiced reasonably serious concerns about judges, and suggested that they had limited faith in their ability to assess expert evidence.

I’m not sure what the alternatives are [but] it doesn’t feel like it’s a very efficient process. [Interviewer: “Do you trust the court to come to the right conclusion?”] Ah, no. There have been several occasions where I’ve made recommendations for mode of evidence and they have decided not to go along with that. It’s hard to understand why. So I don’t always trust that the right decisions have been made. (PS26)

[L]ots of time the judges make decisions that I think are completely mad and sometimes it becomes obvious down the track that the decision was completely mad but that’s how it is. (PS24)

The experts’ concerns about judicial competence are also apparent from the support given to the idea of judge-alone trials and to the use of specialist, trained judges. This is discussed below in the Reform section.

Several raised concerns raised about the judges’ understanding of the nature of scientific conclusions generally and in particular their understanding of the significance of uncertainty in medical judgments. Several experts commented that the court did not appreciate the language of probabilities and the appropriateness of their caution in estimating causation.

I don’t think [the court] respect when I may be am carefully trying to explain the probabilities and the likelihoods and I give a lot of weight to making sure that I am not overstating the probabilities, whereas the defence witnesses never do. (PA9)

DSAC has put a lot of energy into trying to decide where the anus begins and ends, you know, depending on what kind of cell types [etc.] and I sit there thinking surely a penis between the buttocks, whether it’s a millimetre inside. You want more certainty from medicine than what we can give, I think. (PA7)

Several identified specific areas in which they felt the court lacks understanding. These included head injuries, IQ and other psychological testing methodology, and, in one case, counter- intuitive evidence generally. Similarly, a paediatrician commented that judges in the criminal courts often have problems interpreting medical evidence:

I’ve always found judges very keen to learn and understand: They ask good questions to clarify a point. [W]hat I would say is with clear knowledge gaps in terms of forensic science and interpretation I’ve seen on some occasions, they are reasonably [competent]. [However, some] hard [cases] with defence [experts] from overseas recently actually expose the judges’ lack of knowledge in the area. (PA3)

Just as a number of experts felt jurors were ill-equipped to assess the relative expertise of opposing experts, a substantial minority expressed reservations about some judges’ ability to determine expert witnesses’ competence.

[Judges are] often naïve. Because some of the hired gun overseas experts are tending to be so left field - I think most clinicians find them quite extraordinary

- and [yet] the judges’ opinions are swayed, which I find amazing. I think that reflects the [fact that these are] professional defence expert witnesses and so they are very good at being persuasive, even though their science is deeply suspect. (PA3)

A number of these comments related to the judges’ comprehension of the nature of medical qualifications or specialisations, commenting “the courts tend to view a doctor as a doctor as a doctor.”

Often the defence witnesses are doctors from what we consider to be irrelevant specialities. The court doesn’t understand that. [ . . . ] It would be really good if courts could have someone they trusted to tell them who works in this kind of area, what are the specialities; the jobs or qualifications. Some sort of hierarchy: [So, we have] general paediatricians and then we have some people who have speciality training in child protection or whatever, and then a burns plastic surgeon who will know something about burns and that they are more expert in burns than general surgeons. (PA9)

One commented that unscrupulous experts can take advantage of the court’s ignorance to bolster their own credibility.

You can say your qualifications, you can say your background and your experience but I guess you can make that appear in a certain way if you wanted to and somebody who doesn’t have a lot of experience may still be giving very good evidence and somebody else very experienced for whatever reason might not be so robust. (DS15)

A number of experts commented that it sometimes takes years of appearances for the courts to recognise that an expert is unreliable or biased. Experts’ issues with the quality if those appearing as experts are discussed below.

3.1.3 Lawyers’ competence to understand expert evidence

Almost all of the experts suggested that some lawyers did not understand their evidence. While several said that lawyers generally do understand, more commented that their competence varies widely, and some remarked on variations between the skill level of lawyers in Family and District and High Courts.

The best person to assess the competence of the lawyers are lawyers. The best person to assess the competence of child protection experts (so called) is another child expert. I’m not saying that [lawyers cannot assess expertise], I’m just saying it’s obviously a lot more difficult to challenge an expert witness if you don’t have either experts to advise you or expert knowledge yourself. (PA10)

A number of experts distinguished between the competence of lawyers to understand the evidence in the various different courts. Several were critical of practitioners in the Family Court and the District Court compared to those appearing in the higher courts.

Oddly enough [the High Court] always felt very safe. I think because it is so structured but you had to stick entirely and utterly to the facts. The most unpleasant places I go to and don’t look forward to is the Family Court. It’s no holds barred. The lawyers for the various parents are determined to take [to] pieces [anything] that doesn’t suit them and it is just unpleasant. (PA4)

[Family Court lawyers] don’t do basic things: They don’t critique the reports at all. I think in the criminal jurisdiction they are better at it. [I]n the Family Court they’re just hopeless. They never look at methodology. They never look at whether the report meets the basic requirements. They don’t look at whether the report fits any of the guidelines. [Y]ou are supposed to be acting as an expert which means your data has to be situated in the research literature and there are a lot of psychologists who never quote any literature at all. There is no discussion of “well what literature have you relied on?” (PS24)

Some also said that Family Court lawyers, excepting very senior practitioners, were less willing to brief witnesses appropriately, less prepared and less skilful. Conversely, another commented that criminal court lawyers do not understand the ethos of the Family Court:

[T]here’s a different philosophy that operates in the Family Court. It’s always unpleasant if you get [a lawyer] who [is] primarily a criminal lawyer [but] is sometimes briefed to do Family Court work. I wish they’d stay away, I really do, because they don’t get it. [T]they tend to be more aggressive in their style. [B]ut their job is to try and pick holes in what I’ve got and if I think they’ve made a good point I’ll agree. I don’t feel that I need to be defensive about it. (PS23)

Some experts also criticised lawyers (and in one case, judges) for not knowing the law relating to the admissibility of expert evidence. They commented that some lawyers ask them to go beyond the limits of their expertise or to overstep the legal boundaries. They had had to become knowledgeable about the law in order to protect themselves from criticism for following the lawyers’ lead (see “Self-Help” section below).

Competence of examiners in chief

Many experts expressed explicit concerns about the extent to which the lawyers calling them understood their evidence. Generally, the experts here were discussing criminal cases and the lawyer calling them would be the prosecutor, with a proportion also discussing being called by defence or Family Court lawyers.

A lack of comprehension in the lawyer calling the expert could impact upon the quality of the examination in chief. Some experts described incidents in examination in chief where lawyers had failed to elicit important pieces of evidence and others where they had tried to lead evidence containing assumptions which the expert then had to contradict or correct on the stand.

Often if they haven’t spoken to you before, then you know you are saying things that are surprising them or taking things that they thought absolute and needing to tone it down, which sounds much worse than if they had been prepared for it not to be absolute. (PA9)

Where [confusion] happens the most is the paediatric cases with the sexually transmitted infections. These scenarios can result in a circus because they don’t know which experts to call; they do not understand when this kind of thing has no significance. They think that an infection can be used to nail the

accused or if the accused doesn’t have the infection then they think that lets them off the hook when it may not. It can be blown into a huge issue. I remember [a case in which] we had huge difficulty understanding what was going on, [and] it was a very senior prosecutor. So it was actually hell. (DS13)

A few commented that it is difficult to correct or fill in an omission left by the prosecutor.

[When] I am in Court and I don’t get asked the right questions you don’t feel like you can butt in and say “well by the way here’s the other thing you need to know about”. And then you’re off the stand, you’re leaving [and] the important thing didn’t get out. (DS13)

However, as will be discussed later, most felt that these incidents can be kept to a minimum so long as the lawyer calling the expert is well briefed.

Competence of cross-examiners

The other major point at which the experts discussed lawyers’ understanding of their evidence was in relation to cross-examination when they were asked whether they felt that the questions generally addressed what they saw as the issues or controversies in their own evidence.

Again, as most experts were called by the prosecution in criminal trials, most of the cross- examiners here discussed were defence counsel and a few were prosecutors or Family Court lawyers. Whilst generally it was felt most cross-examiners were reasonably competent and able to identify the issues, a substantial majority of the experts reported some defence counsel failing to address “the real things that I think they could have got me on”.

That’s right and proper that I get fully scrutinised . . . but my expectation based on what’s happened so far is that I’ll probably be asked less about it than I would expect to be asked about it. (PS21)

I have to say some lawyers ask the most astonishingly silly questions, seemingly not understanding the nature of the evidence: Not just trying to be clever and trick me, but clearly not actually understanding the basic nature of the evidence. (PA5)

In addition, several other experts commented on other areas which raised concerns about lawyers’ comprehension. Two others commented that cross-examiners in their cases had no difficulty identifying the issues because they highlight them clearly in their reports. A few did not discuss the cross-examiners’ understanding directly so much as the reality behind their tactics, such as the comment that cross-examiners frequently raised untrue misconceptions about the likelihood of injuries in rape cases.

Several raised concerns that the lawyers are not cross-examining other experts as they should and this is allowing biased and poor quality evidence into court.

What I do have issues with is other people giving evidence which I don’t think they are qualified to give. [ . . .] The rules for expert witnesses need to be perhaps more strictly applied. [And] I’m not quite sure why it’s not being picked up on. [ . . .] I would have thought to be honest that defence would jump on these things sometimes and they haven’t. (O19)

Good lawyers will look at the defence witnesses’ specialities and experience and bring up [that] even though they are a man in a suit they’ve got no experience in this area or got no relevant experience. [But] often lawyers don’t do that or don’t know to do that and if you haven’t talked to them beforehand, if you don’t know to ask those questions then they don’t.” (PA9)

Conversely cross-examiners who understood the material and treated the expert respectfully were respected in turn:

[One defence lawyer] ask[s] the questions . . . in an academic enough way that he really does sound like he knows what he is doing. I think they are very effective defenders and I give them huge respect. I think [of] a couple of prosecutors from [X] that like to browbeat you and I get quite angry with them, especially when they start off in crazy directions. Their determination pushing a line of questioning [which] I think I have already dealt with [irritates me] and I lose it. I like defence lawyers who use their information but who use it in a way that opens questions but don’t twist it. You are more likely to be prepared to talk to them again. (PA4)

Other cross-examination tactics, such as the tendency to overemphasise irrelevancies or to insist upon an unqualified “yes or no” answer can also be interpreted as lawyers failing to understand the evidence. These tactics are discussed later in the section on cross-examination. There was also, as was discussed earlier, concern about the extent to which defence continue to put forward myths and misconceptions about sexual offending. In each case, however, it is beyond the scope of this study to identify whether lawyers act as they do out of actual belief or for tactical reasons.

Twice experts linked their concerns about the quality of defence counsel’s understanding with the possibility that defence counsel are let down by the quality of experts they consult. The widespread concerns about the quality of opposing experts generally will be discussed later.

I think they often don’t understand the whole literature thing, so I guess the experts they have been talking to don’t understand it mostly. [ . . . ] [Defence need] better experts advising them. It’s kind of that the [real] controversies in the literature don’t tend to come up [in cross-examination] or the ones that come up are the ones who were in the literature 10 years ago. (PA9)

3.2. Adequacy of Briefing

The experts identified a number of factors which they felt contributed to lawyers’ competence in handling their evidence. Lawyers understood the evidence well enough to lead it properly when they were very experienced in that sort of case, had a long working relationship with the expert, had worked very hard to understand the evidence, or were well briefed. Such lawyers were much appreciated, such as the defence counsel praised for his “fantastic and obsessive” approach, “just go[ing] over and over the points” (DS27).

One important mediator of competence was, understandably, a lawyer’s experience with the type of case.

[It] depends on which defence lawyers they are because there are ones who are very experienced with sex trials and there are those who have no idea. There was one who asked really stupid questions.” (DS13)

I think the prosecutors have an innate advantage with this because [for] most of them, it’s not the first case they’ve dealt with, whereas the defence sometimes seem to be floundering, not really understanding because it is possibly the only time in their careers they’ve had to defend someone with that particular kind of scientific evidence. (O18)

However, if familiarity could breed a measure of competence, unusually complex evidence could derail a questioner:

And again that depends a little bit on the nature of the case. The straightforward ones, yes, I think they go pretty smoothly. You start trying some other evidence and sometimes it confuses people in all walks of the court’s life, really: It confuses either defence or prosecution, [or] the jury. (DS15)

Thus the most important factor in determining the lawyers’ competence was not their experience with the type of case but the adequacy of briefing in the particular case. The remainder of this section discusses the experts’ comments regarding briefing practices amongst the lawyers calling them. Most often that lawyer would be the prosecutor, although some experts were also called by defence and Family Court lawyers. Differences between the different lawyers will be discussed when relevant.

The experts reported that in order to deal with their evidence adequately lawyers need to be briefed by the expert in question. Successful examination in chief “really depends how well they have understood what you are saying beforehand.” (DS27)

Thus the importance of briefing, as seen by experts, was not only for the lawyer to help the expert to acclimatize to court (something most experts seemed to regard as a lost cause), but for the expert to check the lawyer’s understanding of the evidence, the salient points to be elicited and their significance.

I really encourage people to try and talk with the Crown Prosecutor. You can talk about what you think are the issues, you can hear what the Crown think are issues and what’s the best way to explain that. [ . . . ] In my experience [exam in chief is fine] as long as I have had the opportunity to have a conversation. I feel very uncomfortable going to court, particularly in a non- normal examination, without having a conversation with the client. (DS11)

[T]he one case I felt comfortable about - that I thought went well and that we explained very clearly - was the time when I had spent a couple of hours with the lawyer face to face. She was just asking me questions and working out what my answers [would be] and probably getting a better understanding herself of just what we were saying and what we weren’t saying, so that I felt like she really understood. (PA9)

The experts stressed the importance of briefing in ensuring the evidence was elicited fully. One gave an example of a case where lack of briefing resulted in insufficient evidence being led.

[In the criminal court] [t]hey seem to think that you know what you’re doing and they [don’t brief as much]. I have at times needed to talk, particularly to prosecutors, about the need to get particular areas of evidence out and why that’s important, because I can’t come to a diagnosis without all of the areas being covered. [There have been cases where I have been] left with insufficient data to be able to support all the things I’d said in my report. (PS22)

Some luckier experts described “near-misses” where they had picked up and been able to correct important misunderstandings in briefing meetings.

[T]he interaction I had with the prosecutor [pre-trial] made me realise she didn’t understand the issues so I said “I think it is best we sit down and talk about this”. (PA1)

Another expert also remarked that while she ensured that examination in chief was sufficient by ensuring that her written statements were very clear and left no room for error or doubt as to what were the issues, briefing was important to ensure the prosecutor understood the law regarding expert opinion evidence.

However, for the vast majority of experts, briefing was rarely adequate and this was a serious cause for anxiety:

[T]his one time I went in and I hadn’t had any discussion about a case with the lawyer and I then got totally scared about where we were heading and what was going to happen, what she would say and did they understand what I was trying to say and I felt very unsafe. (DS27)

Unsurprisingly, given the importance experts attributed to briefing, lack thereof was the interviewees’ major complaint about lawyers calling experts.

[Briefing is ] [n]on-existent. It would be my biggest bug bear. (PS24)

[Pre-trial contact is] extraordinarily brief – in some cases we won’t even meet the Crown before we go into court. Certainly in about 50 percent of cases we will have a meeting some months before trial and the other 50 percent we will meet them very briefly 10 minutes before we go into court just to cover a couple of points. It’s not adequate, not at all. (O19)

There were notable differences in experts’ experiences of the level of preparation and briefing depending on whether they were called by defence, prosecution or Family Court lawyers.

In the Family Court, one expert complained of a lack of briefing.

In the Family Court you might get to sit down 10 minutes before it starts. (PA8)

However, a few others commented that they are briefed properly but only because they insist.

A good Lawyer for the Child will have asked you what is it that is important to you to say and will also say to you, “look I’d like you to tease this bit out a bit more”, so they tell you in advance what [they intend to ask]. [B]ut I will make sure I [am properly briefed]. As soon as I see there is a hearing I get in contact with them and say “right, when are we meeting”: I want to make sure it happens. Because I think I’d like to know at least where some of it’s going before I get there. [I]f they are going to ask me something I hadn’t anticipated I don’t think that is very helpful to me so I like to have a bit of a think about it and they might tell me something that’s come up that they are interested in knowing what my view about that is. (PS23)

Several experts commented that a particular difficulty in Family Court cases was the Practice Note by one Principal Family Court Judge that effectively prevented the Lawyer for Child397 of Lawyer to Assist398 from undertaking any briefing of court-appointed experts, although the experts reported that more senior lawyers are opting to brief properly.

Lawyer for the Child: That role has been a wee sea change which of course is moving back to what’s sensible, which is that they are now going to hold both the role of advocate for the children’s wishes and the children’s best interests. [B]ut for a while some of them refused to brief us because [they] said “no, my only role is to advocate for the child’s wishes”. (PS23)

In the criminal court the major complaint made about prosecutors was the lack of time spent in briefing. Nearly half the experts raised this as an issue. Conversely, several mentioned that defence lawyers spend much more time with their experts.

[W]e had very little contact with prosecutors before court. [The defence] actually spend an awful lot more time with you than the prosecutors ever did. (DS14)

There were several observations that prosecutors are often underprepared and rushing to get up to speed. Some experts saw the lack of briefing time amongst prosecutors as a symptom of their overwork and were largely sympathetic, although it meant that they had to wait to address the issues with the lawyers until just before trial.

397 The New Zealand term for “Counsel for Child”.

398 The New Zealand term of Amicus Curiae.

I understand that Crown Prosecution is just like a factory for a lot of these cases and that the prosecutor might not pick it up until the week before the case. (PS24)

Several commented that some prosecutors and some Family Court lawyers appear to assume that experienced experts will be able to give evidence without discussion.

But for the prosecutors, to give them their due, because DSAC had worked with them and they knew the training we had and a brief that we did covered a very typical guideline, I think they knew that those of us who have done the DSAC training etc were likely to [answer] the defence in a professional [manner] and be ok about saying “I don’t know. I cannot answer that.” (DS14)

Very few experts concurred with the perception that they needed only minimal briefing and then only in the most straightforward situations. They would still prefer more contact.

A few were more critical of prosecutors’ attitudes and saw their lack of preparation as a lack of engagement.

I find that [the lack of effort to brief] bizarre because it’s your case and if you don’t make the effort to ring your witness then how do you know what she’s going to say; how do you know what is important medical evidence, and what you expect of the evidence, what needs to come out and how to, which questions to ask and what sort of things you need to understand. It amazes me that the lawyers don’t make an effort to do that. (DS13)

In addition, several paediatricians, whose work spans both sexual and physical cases, commented that there were sharp differences in the effort prosecutors put in to different types of case, with far more attention paid to preparation for physical than sexual assault cases.

[Briefing time] [d]epends on the case. So on a physical abuse case [we get] a lot more: We might get to sit down for a morning, if that, or if it’s a sexual abuse case just probably before you go to Court. [ . . . ] It depends on the prosecutor or it depends on the case. So sexual abuse cases are usually badly done, [although] from our perspective it’s a much easier trial, whereas in some of our physical abuse cases where it’s a much broader range of things it is different: In those more serious trials it’s managed better. (PA2)

Another paediatrician commented that high profile cases got more attention.

[In a recent high profile trial there was] lots of daily contact and I often got transcripts at the end of the day because - this might sound rude - the Crown needed us [to] help them check what people are saying. (PA8)

3.3 De-Briefing

Experts also commented on a lack of communication with the lawyers calling them at the other end of the trial after they have given evidence. Over half the experts discussed debriefing. They agreed that contact with lawyers after trial was exceedingly rare. Police were likely to be the only people available for discussion, and then only briefly.

Oh maybe the Police nods and says “thank you very much and that was ok” or something like that. (DS12)

A few also commented that they have difficulty discovering the outcome of cases in which they are involved.

I don’t hear about all of the cases of course. They often proceed without our involvement: There is sufficient evidence from the reports, I think. They don’t always let us know [the outcome] so I have no idea whether any other reports

have been so successful. It would certainly be useful for us to know how helpful our reports have been. We don’t get a lot of feedback from them. (PA5)

It would be really nice to know what the outcome was in the Family Court because we are still working with these people often. (PA9)

Conversely a psychologist who appears regularly in the Family Court commented that that court is good at sending judgments out:

[Lawyers] used to send the judgment but the court’s now very good at sending you the judgment because we often didn’t get them so you had no idea what happened after you appeared. (PS23)

The discrepancy may reflect the established position in the court system of the court-appointed psychologist as opposed to that of the partisan-appointed paediatrician.

Debriefing was seen as potentially serving two needs: First, the improvement of experts’ subsequent performance as witnesses and second, to assist with their stress-management. As most experts knew they could not rely on lawyers or police to support them emotionally, some had relied on colleagues to help them process the experience. Some, however, found it hard to find suitable colleagues. This is discussed below in Collegial Support.

In terms of performance improvement, it was clear that experts would generally welcome constructive discussions with the lawyers about their performance as witnesses, although some were wary of the time and the constructiveness.

I guess some sort of feedback [would help]: More constructive criticism maybe than overwhelming criticism because that’s a bit much but if you think “well, maybe you could have done that better” that might be helpful. [Y]ou think “well I have no idea whether that was good or bad but you know, I presented the stuff ok”. It would be quite nice to have someone say. (DS12)

One commented that it was hard to see how one could improve without feedback.

You don’t very often get any feedback – it’s very rare. [And] it would be difficult to modify your approach in court if you are not actually aware of how you’re going. I know [some colleagues] have sort of got their own system where they will go along and sort of peer review each other in court as part of their own quality [assurance] processes. But we are such a small group it’s actually very difficult for us to do that. (O19)

Apparently the police have recently instituted a form to debrief expert witnesses, although it appears not to have been widely publicized at the time of interviewing as only one person mentioned it.

A few commented that as part of a proper de-brief they would like to see the transcripts of their evidence in order to improve their practice in future.

[I]f I come away now and I don’t feel that I managed that as well as I could have then I usually ask to get my evidence later and then I look at it what I’ll see is I’ve got waffley. That’s helpful and with people that I supervise with Family Court work I get them to do that sometimes and we have a look at it, just where it might have been, where you could have been tighter on it. (PS23)

DSAC encourages its members to obtain transcripts and this was seen as a difficult but worthwhile exercise. However, it seems this is only an occasional practice amongst DSAC’s rank and file, let alone amongst other experts.

DSAC tries to [get you to get] court transcripts [to] see what you can do better. [M]ostly I want to draw a line and forget about it but part of getting over it is debriefing yourself a bit and working out what you could do differently rather than just stewing on it. I have [obtained transcripts] once I think and I think that would be not a bad thing to do from time to time. (PA4)

3.4 Cross-examination

The next section discusses the experts’ opinions of cross-examination as a means of testing their evidence. It examines both their general perceptions of cross-examination and also some specific cross-examination tactics the experts reported finding difficult.

3.4.1 Trickery, obstruction and misrepresentation: overall perceptions of cross- examination

Although they appreciated the need to test their evidence, it was quite clear that overall the experts do not respect cross-examination as an investigative technique. Instead, many experts described cross-examination, with distaste, as a “just a silly words game” (PA9) , or a theatrical performance, and several described it as trickery.

I say “tricks”: They clearly are tricks but not intended to reveal the truth: They are intended to try and get the expert to say something different that is more in favour of the position the legal counsel want to put to the court. (O20)

Many experts linked this aspect of cross-examination to the adversarial trial generally, seeing the trial also as, in the words of one, as “just a game they are playing.” (PA6)

These experts viewed the theatricality or gamesmanship aspect of the process as profoundly unprofessional and as detracting from the essential seriousness of the issues.399 The advocates’ role-playing was sometimes not respected.

[I]t’s a terribly difficult environment and sometimes at the end of giving evidence you get off the stand and the lawyer who has been attacking you for the last three hours will pat you on the back and say “Boy, I can see you’ve been on the stand a few times, that was a really good performance” where it actually shouldn’t be like that. (O20)

One, for example, described her embarrassment at having herself acted theatrically in court, even though she realised that it had added to the effectiveness of her presentation.

[It was] absolutely great theatre [but] I worked hard not to become part of that theatre. I had become part of that theatre the day I said that, and I kicked myself because to me that took away from what was really the message, that this person had given a history of assault, had shown some positive findings, that they needed to be interpreted in [light of] the fact that the majority of sexual assault cases you don’t see injury. [T]he [defence] guys were trying to draw away from this issue, so it was important to not become part of that theatre.( DS14)

Similarly another expert commented that she dislikes cross-examination because “it feels like it’s too important” a matter to devolve into the “silly” attacks she saw predominating.

What experts disliked most about cross-examination was its ability to distort and obstruct their evidence. Experts frequently described finding that they had been obstructed from giving evidence during cross-examination. They experienced this as deliberate behaviour on the part of the cross-examiner.

[Lawyer’s name] managed to completely shut me down because he knew exactly how to manage me. He shut me down so the information I should have

shared I didn’t on the first trial. It was a hung jury. [At] the second [trial] he again shut me down. Twice that was information I needed to get out. I could have [explained] very easily if I’d been given enough space, and it was me not thinking properly, me not planning that he would do that. (PA4)

What is interesting about this is not only the experts’ observations about the lawyers’ intentions but that the lawyers were successful: That these experts in these incidents had felt unable to take control of the discussion and to insist upon giving their evidence fully.

Several experts also suggested that some cross-examination tactics, discussed below, are deliberately designed to confuse them.

They also described feeling that their evidence had been misrepresented during cross- examination; lawyers “twisting their words” to mean something they had not intended.

Twisting words. It’s more the way they emphasise “so you’re saying the examination is completely normal, doctor?” “Yes I am” is the answer to that, “but. ” It’s just maybe something in the way they have worded something or

that they are going to make you say something you didn’t quite mean to say or didn’t say as well as you wanted to say. (DS15)

Several commented on the lack of control, or ability to clarify and discuss matters in order to avoid misunderstanding. Again, these experts report feeling powerless in the court.

It’s not the same as [a normal conversation]. [Y]ou are used to having the “oh why do you think that” or “this wasn’t right.” [Y]ou are used to having that sort of discussion but it’s not the same discussion. (PA2)

[Court is] [d]isabling. It’s a different environment and there’s rules, you are not allowed to necessarily say “why are you asking me that question” or things that normally seem a reasonable conversation, it’s not like that at all. (DS11)

Misrepresenting the significance of evidence

One issue which came up repeatedly was the misrepresentation of the evidence via a disproportionate focus on irrelevant or inconsequential details or unrealistic alternatives, to the extent that experts fear that “sometimes the issues can get lost.”

[T]he inference ends up stuck on particular things and its’ out of all proportion to the significance of that particular detail. (PA8)

Similarly, the experts were frustrated that their care in not overstating the probabilities was misrepresented as uncertainty.

[I]t feels like they are just trying to make you look unsure whereas you are feeling like you have a strong duty to not overstate or not be led into absolutes. (PA9)

Several experts also said that defence lawyers often stress the complainant’s lack of injuries following an alleged sex assault, especially where the complainant is a child, exploiting the common but mistaken belief that penetrative sexual assault is likely to cause injury.

[Defence lawyers often raise] the old thing of “How can you expect anyone to be raped and not have abnormal signs?” “Surely, doctor, this was a big man, it’s gonna cause more damage?” All that anecdotal stuff out there in the community which is the “fact” that if someone is raped there is going to be injury, there is going to be signs. [Lawyers will say] “How can you expect a four year old to be raped by someone [and] not to have injuries?” [Y]ou certainly realise that it’s a lot easier when there were injuries. (DS14)

The experts clearly understood that often lawyers emphasise these aspects of the evidence because they were trying to find reasonable doubt, even if the expert saw the doubt as unreasonable.

[W]e all find the kind of question that says “Oh isn’t it possible” or “is there any chance” always quite frustrating because, you know, medical people don’t believe in anything being 100%: There’s always a chance of this that and the next thing. But then, I think that they’ve got a job to do and it’s their job to try and introduce doubt. (O18)

However, while the experts understood the defence counsel’s role, they were concerned that defence counsel deliberately over-emphasise confusing aspects of the expert evidence in cross- examination to obtain an acquittal.

If you reference something that you said they get the reference paper out and ask you about some little tiny sub-point or something or other that you can’t possibly remember, so you end up going down some little alleyway which is nothing to do with the substance of the reference but it’s all about making it so the jury thinks I am far too difficult and then don’t take any notice of that [evidence]. (DS11)

What happens is that three or four days can get spent arguing about stuff nobody understands. The jury will have glazed over after five minutes on day one. Defence lawyers use that kind of dragging out to confuse the jury so much they can’t see the wood for the trees. (DS13)

This sort of cross-examination was seen as misleading to the point of dishonesty. One described a lawyer whose tactic is to present academic authors’ routine discussions of the limitations of their methodology as admissions the studies are seriously flawed:

Now there is one lawyer who’s become very skillful at reading all of the literature around. And when they start cross-examining you on the literature they say things like this “there’s a flaw in that research isn’t there?” Every piece of research usually ends up with something you would do something differently, or [a reason] why the results can’t be [generalized]. [I]t’s intellectually dishonest. [Y]ou get this uncomfortable feeling that they’re misleading the judge and I don’t know why they think that’s helpful. [I]t has a nasty feel to it. (PS22)

Several experts tried to manage the evidence to avoid introducing the risk of confusion.

I believe in keeping it simple. [T]here’s a hundred papers written about this subject and going into depth on all those papers I don’t actually think helps anybody because the jury is not going to understand it. I try not to quote papers. I can say that “there is an overwhelming body of evidence to support my opinion. I can give you articles in any detail if you really want them,” and then [when] you get tackled, [you say] “well there are some controversies” and you say what they are. [. . . ] [It is best to do it] without putting all the journals out there because all that does is confuses everybody - which I think is a good defence tactic: It’s like “let’s just put in reasonable doubt because nobody understands anything the experts have said”. (PA2)

Misrepresenting competence/expertise

Many experts felt that cross-examiners frequently sought to misrepresent the experts’ competence or expertise, although a few said their expertise was not generally attacked.

[The] defence will take every opportunity to try and take [your expertise] down a few notches. (PA8)

[T]hey are trying to find some weakness or something there that makes you look like maybe you are not as expert, [as you actually are]. I’ve done it for 10 or 12 years so, and I have certainly seen a large number of children so it’s not like I feel like I don’t have any experience. (DS15)

These sorts of attacks were seen as misleading and unhelpful:

Trying to make this person not appear to be very competent [is not helpful to the court]. Because I see my job as to give information to the court and to be asked about why I came to that conclusion, not to be trapped. And it’s very hard to know how to deal with sometimes. (PS22)

Misrepresenting independence

Their independence and neutrality was another aspect which some experts felt was misrepresented in cross-examination:

[Y]ou get a bit of a shock, actually. [ . . . ] [I thought] when I started if I write an objective opinion to the court it would be seen as such and I wouldn’t be subject to the “professional sham” sort of assertions. [D]efence witnesses and defence are quite free to cast professional aspersions on Crown witnesses whereas I don’t think that’s actually professional and I don’t think that’s what an expert should do. I was a bit naïve, I thought you just approached it with an academic [eye] and professionalism and gave an objective opinion and people would actually accept that that’s what you are doing, but that’s actually not the case. (PA8)

Several commented that the defence regularly accuse them of being pro-prosecution.

Sometimes a technique that gets used [is] this ”doctors are out to get you” [myth] that kind of concept that you’re deliberately going out there trying to find abuse. It’s not what I signed up for: I’m really happy to prove it’s not abuse which I’ve done on several occasions. I think sometimes juries are tainted by that “the doctor’s got an agenda” [misconception] and [believe] you are out there to prosecute this person. I don’t know where that comes from. (PA2)

Another expert felt that the court itself did not accept her neutrality.

I think I am really responsible for not overstepping [the boundaries of objectivity]. But I think the court thinks I am [biased]. (PA9)

As has already been discussed, the concern that they might be open to being typecast as biased “Crown” witnesses was behind some experts’ desire to undertake work for the defence.

At the same time, a couple commented that the defensiveness engendered by cross-examination can undermine experts’ ability to remain neutral or not be drawn outside their expertise.

Most doctors find it [testifying] very uncomfortable, particularly those who don’t go often and haven’t had much training. They become quite defensive and say things that actually they may not really truthfully mean if they thought about it. They are sort of caught and express opinions which if they sit down and think about it, is actually outside their area of expertise and they just don’t know. (DS11)

In the criminal court it is very adversarial and it’s very hard to remain neutral, to give a truly independent opinion. As soon as you feel like you are in a fight your natural tendency is to support your position slightly stronger in order to ward off attack and the tendency to do that inevitably results in you slightly distorting your opinion. (O20)

3.4.2 Specific cross-examination tactics

The rest of this section discusses the specific cross-examination tactics experts identified as difficult.

While some experts appeared not to know what to do when faced with obstructive or misleading cross-examination (other than to hope for judicial or prosecutorial intervention), more experienced and better trained experts had developed strategies to combat the various techniques. The strategies are described in this section but will be discussed in more depth below in “Self-Help”.

Ambush

A significant number of experts, especially criminal court experts, described being ambushed with new information during cross-examination, either with new facts about the case or with research literature, which they were asked to comment on immediately. This was a frustrating and “daunting” (O18) experience. The experts doubted it was possible to provide a sound opinion on previously unseen material instantaneously and therefore believed that ambush questions misrepresented their competence and reliability.

Experts reported being ambushed in a variety of ways, including with academic articles.

[Y]ou often get defence or the defence statements and their expert opinions very late sometimes and then they get up [to cross-examine] with articles in their hand and, you know, “have you read this?” (PA8)

In other cases issues experts would be confronted with new information which had apparently come to light in the course of the trial.

Often things have gone on in the trial that you don’t know anything about and so they start asking about things which you think “where is this coming from?” That’s a bit tricky because you really often want to know more about that. I remember vividly the Judge asking one day whether or not they [the complainant] had been wearing tampons and I think “what on earth’s that about?” It wasn’t an issue when I had seen the patient, so clearly something else has come up [during the trial]. He had to stop in the middle and explain a wee bit but that’s a bit awkward. I’ve [also been asked to comment on papers on the stand. [I said] “certainly I am happy to answer questions about that but I need time to look at it.” (DS11)

Sometimes the defence had deliberately kept information aside to surprise the expert, including the opposing experts’ report, although defence expert reports must be disclosed within 14 days of trial, unless allowed in by the judge.400

I have had one terrible experience in court where in the middle of the cross- examination they turned up with test results they had gone and done which were not disclosed at all and I got given this new material while I was standing up there, saying “doctor do you know what this is?” and “can you give your opinion about it?” While I am standing up there. [It was] not good, because I didn’t know at that time whether I could say “look, I need some time to go and look at this” or whether I had to come up with an answer there and then. It was very upsetting. (DS13)

The same expert also described this tactic from the opposite side of the fence, as the opposing expert whose evidence would be the basis of the ambush:

[Defence counsel] are usually ok with the fact that I let the other side know that I am around but that’s usually where they draw the line. They’ll say “that’s

400 Section 23 Criminal Disclosure Act 2008.

fine you can let so and so know I have asked you to come and write a report but I don’t want you talking to them about any of the case” because quite often they have got things that they want to bring up, that they don’t want the other side to know about. So they have decided that this aspect or that aspect is important [and] he wants to either challenge the complainant it about it or challenge the doctor about it so they don’t want them to know about it, so that’s very difficult. (DS13)

Clearly, experts often found it hard to deal with this sort of behaviour. Several found it very difficult to give a considered response to new information “in the heat of the moment when everyone is watching you”.

I don’t like it. [Y]ou should have adequate time to read the material. The fact that they brandish these articles and ask you about them: It’s just structured to catch you off guard or not let you have the opportunity to give a considered opinion. (PA8)

Another commented that in an ambush it was hard to refuse to answer because doctors are conditioned to be helpful:

Especially when there’s an unexpected line of enquiry [about] areas that you have some knowledge [of] it’s very difficult on the spot to say “well, actually I’m now outside my scope,” because especially when you are a generalist you’re very used to working with areas [about] which you know but don’t know everything. There’s a point at which you ask for advice but it’s a different point when you are standing on the stand. These days you learn more and more and I’ve come to a point I’m not going to answer questions about such and such. [ . . . ] [But] we are used to trying to be helpful and we are used to trying to answer questions and sometimes we might know the answers. (PA6)

One expert, asked whether ambush with literature could be a relevant test of her expertise, responded:

I don’t think actually an expert opinion comes down to reading one journal. Your ability to come up with an opinion is based on the experience and your clinical judgment, [your] training: You are reading lots of medical literature. [Expertise] is a whole lot of things; it’s not just down to one article. (PA8)

However, several experts reported that when they are ambushed on the stand they have learnt that they can request time to read and consider the new information before giving an opinion.

[At first] I didn’t realise [I could say] “[If] you actually want me to talk about that article, I need time to read it.” Initially [I thought] I needed to make an immediate response. One of the training courses I went on in Auckland, DSAC, one of the Crown prosecutors gave a talk in training and that was very helpful, the sort of tips them had. (PA8)

Limiting responses: “Just a “yes” or a “no”, please.”

When asked about cross-examination tactics they find difficult, many experts described lawyers who “badger you for a yes or no answer”. They universally disliked this tactic because they felt it obstructed the presentation of important qualifying evidence, leaving a partial and misleading impression.

[W]hat they like to do is get you to a point where you are answering “yes/no” questions. [But] there’s no right in it unless you are dealing with something that has only got one answer which is not often. More often we are dealing with situations where there are a number of possibilities: One might be more

likely than the other but the whole reason why we are there is to try to put things into context, into perspective so that the jury can understand. (DS13)

[Y]es, this injury could have happened in a car crash but there was no car crash. They try not to give you the chance to say “but there wasn’t a car crash.” (PA9)

A few commented that they found it very hard if not impossible to avoid being boxed in or restricted to a limited, unrepresentative answer.

I was trying to fit some context around but they kept going at me “yes or no” and in the end you just answer yes or no. But [in that situation] how can I possibly give any context to my answer? [. . . ] [T]hat’s one of the things you worry about: That defence will really try and reduce your answers to [something] as brief as possible so they don’t really want you to elaborate because they want you to reduce something of great complexity to yes or no. (PA8)

Some did not fight. One had given up because of the stress involved and one felt powerless unless the prosecution or judge intervened.

What I used to do is sort of try to set the person right in answering my question. I’d say “yes but” but usually they will keep hammering at me so I used to find that sort of thing stressful but now I just say “yes” or “no”. I don’t bother to try and correct them necessarily. (DS12)

Several reported having learnt to combat lawyers’ attempts to box them in to a yes or no response, although they were not always successful. Some experts said they negotiate with the judge to be allowed to qualify their answers where lawyers try to limit them to “yes/no” responses.

If somebody in cross-examination tries to get me to do a yes or no or cut me off what I will do is just look at the judge and say something like “if I am going to be of assistance to the court I need to qualify that” and judges invariably say “yes, please expand on your answer. (PS25)

Others reported they had learnt how to give a full answer where they suspected a trap looming, without relying on the judge for assistance.

[I]t’s down to you really: [O]ften a cross-examiner will make a good point but you just need to catch them up on [something]. So you might want to say “well, look, that’s the difference between probable or possible,” [or] I might say “that may well be accurate, however” and I’ll add my other bit that I think is important. [Y]ou’ve got to be an active part of what’s happening to do it well. (PS23)

Funnelling

One use of “yes/no” or heavily restricted closed questions of that sort was to funnel the expert into a trap. Thus the obstructive technique discussed previously was then used to manipulate the expert into a situation which misrepresented their real evidence. This was described in detail by several experts, one of whom gave it the name by which it is known here.

A lot of the time lawyers will ask closed questions which appear on the face of it to require a yes/no answer and there will be a series of these questions which . . . the answer is reasonably clearly “yes” or “no” and but before you know what’s happened there has been some slippage in the train of logic from one question to the next to the next and you get led to a place where you are very uncomfortable yet in the heat of the moment it’s very difficult to see

which of those questions that you answered was responsible [for the slippage]. (O20)

Several experts reported that they try to avoid being funnelled into an unwanted position by anticipating the lawyers’ intended end and by insisting on qualifying their answers. Another commented that she managed by having “learnt not to talk too much.”

[I]f I can manage to work out what it is that they are getting at (it’s a little bit like playing chess I suppose) then I will try and take on board the meaning when I answer the questions so that it doesn’t narrow down. (DS13)

[Y]ou do learn a few things on how to tackle the questions. As you go on you can more easily pick up on where they are going to go with a question. After a while you can sort of pick up where they are going to go or you can [anticipate] what the defence is going to be. (O19)

Multi-clause questions

A number of experts described lawyers asking questions containing multiple clauses or (PS25) “six questions in one.” This was an example of a tactic seen as deliberately intended to confuse them or to make their evidence appear inconsistent.

[T]he questions are so convoluted it feels like the point is to get me confused. (PS26)

At one stage I was asked a question that was 10 minutes long and I had to say “I’m sorry I can’t remember the start of that question” because it was the kind of thing that the answer to the first part was different to the answer to the second and I felt like he was trying to get me to answer one part of it and then he could accuse me of not being consistent. (PA9)

Another described the language in such questions as difficult for multiple reasons, including the use of double negatives.

I find it really hard to know what questions are asked because the questions are so convoluted. [T]he sentences are often long and there’s multi-part questions and they often [contain] a double negative. I find it hard to answer that appropriately, reflectively. (PS26)

Several had developed strategies for coping with bundled questions. Some declare the problem outright and asked the lawyer to break the question up.

[W]hat you say is “Look, I can’t remember all of those questions. Could we start with the first one?” I’m always careful not to humiliate anyone so even if they are playing silly games I am not going to make them look bad. (PS25)

Another did the lawyers’ job for them and distinguished between the different questions in her answer.

I try to break my answer up into small bits. (DS11)

However, one less experienced expert said that while she was prepared to ask the lawyer to break up the question she still found that the form of the question affected her ability to answer clearly.

I find myself repeatedly asking “can you say that again?”I find myself trying to sort out what the question is and I don’t feel like I am given a good opportunity to show what I know. (PS26)

Repeating questions

A number of experts reported lawyers attempting to confuse and manipulate their evidence by repeating questions, often with a slight rephrasing, in order to trap the expert into an apparent inconsistency.

[Defence ask] multiple questions or the same question in a different way and you have to just give the same answer. It’s about trying to make you say something else. (DS11)

I was in court last week and I was asked the same question three times. Obviously the Crown prosecutor didn’t like the answer that I gave the first time and he didn’t like the answer that I gave the second time because it was the same answer and he then asked the question a third time and I didn’t quite know what to do. But I have been in that position before and the question gets couched in a very slightly different way so that it looks like it’s a different question but it’s not and any variation in your answer will of course look like inconsistency on your part whereas in fact you might have some kind of feeling that perhaps you should try and be helpful and answer the question in a slightly different way. (O20)

The difficulty caused by experts’ need to be helpful is something the interviewees remarked on a number of times in different contexts. This is interesting as it recalls longstanding concerns that children will change their answers to repeated questions out of a need to be helpful to or comply with the questioner’s implied suggestion that they were wrong. It appears expert witnesses may feel a similar compulsion.

If the lawyer persists with repeating the same question (apparently in an attempt to have the expert change their answer) the next strategy is to seek assistance from the judge:

I’ve had to say quite a few times “I’ve already answered that question”. And it’s repeated and repeated and I’ve had to turn to the judge: “Your Honour, I feel I have answered that question”. (PS26)

A few, like the expert above, simply continued to repeat their initial response.

[Y]ou have to just give the same answer. It’s about being strong enough to keep giving the same answer. (DS11)

Another expert instead used the repeated questions to give further information unfavourable to the cross-examiner’s case until counsel backed away.

I tend to give a longer answer each time. Usually [it is] defence who does that. Often they are trying to get you to say something that I wouldn’t necessarily say, so, an example, [in] sexual cases would be that a normal exam means nothing. So, I might get the first question or so, I might give a very short answer and if I keep getting asked over and over again, I’ll give a longer and longer answer until they stop. (PA2)

Multi-part questions and repeated questions are two of the major issues with the cross- examination of children. That highly skilled adults also find them difficult is of great interest. When children are examined lawyers are regularly advised to eschew multi-part questions. It may be that that advice should be broadened to include other witnesses.

Rattling

Another tactic reported by a significant number of experts was that lawyers would try to “rattle me a little bit”, whether to make them angry or to make them lose their confidence.

A defence lawyer was trying to get me riled and he managed. [H]e sort of went back to the whole issue [of] “and how long have you been a doctor” and he

really got up my nose. I said “oh for goodness sake.” So he did what he had to do. He was trying to get me flustered and make the jury think that I didn’t know a thing. I was aware of it: I remember thinking “oh yes, he’s just trying that thing”. (DS11)

Its part of the game, the way a defence lawyer questions you and I think the worst thing you can do is get upset, become angry; become aggressive. [. . .] [I]t’s a wicked impact on the jury if you suddenly started becoming upset. (PA1)

Experts attempted to deal with this tactic by remaining calm, although this was difficult.

[Y]ou try not to get intimidated, trying to be calm and not show any frustration if the defence is calling anything into question. [Y]ou have got to make sure you don’t get sort of emotionally caught up in the whole thing. I think there’s a danger there [that] you will just look silly, you know, like you’re biased if you become sort of adamant about things. (O18)

[I still] get flustered but at least I am aware of what he is doing. I just don’t hurry, think carefully about what they have said and you know, realise it’s not about me, it’s just a game they are playing. I tell [juniors] to keep calm and not to take it at all personally. (PA6)

3.4.3 Judicial intervention in cross-examination

There have been repeated criticisms of the low levels of judicial intervention in instances of inappropriate cross-examination of children. The next section explores the experts’ discussion of judicial intervention in cross-examination in more detail.

The experts were keenly aware of the importance of good judicial management:

[It] comes back to the judges being the manager of the court. If the judge does it properly it works. (PS22)

Several experts mentioned having received help in controlling inappropriate cross-examination and to judges who were at pains to ensure the evidence was elicited clearly and comprehensively.

I think the judges get it. I try and make an effort to present the evidence in a way that the jury has a good understanding and the judges are usually very adept at ensuring that the jury understands, I think, making sure that things are repeated or clarified if he thinks it may be, it’s not 100% clear for them. (O18)

One expert commented also that judges will sometimes intervene to prevent cross-examiners who are attempting to prevent an expert from qualifying their evidence.

[T]hey phrase those questions in a yes/no answer kind of way so that you say “yes” and they promptly try to move on with it. I have had judges who have either pulled them up or said “feel free to explain again or more”. Sometimes the judge can be quite helpful, particularly if they think you are being coerced into or [if] they are trying to get the jury to believe something they can be very helpful. (DS15)

A few however commented that judicial interventionism varied and was sometimes unhelpful, as when the judge misunderstood the evidence the expert was giving.

I had one recently where who [would] try and put their interpretation on the saga and tried to magic things out of how I give my evidence and I couldn’t really help. (DS27)

However, judges do not always intervene quickly enough.

[T]here’s been times when I think they could have shut down cross- examination more where I’ve answered something five times but will hear the same question five times. [T]hey will eventually get round to saying “I don’t think you can put that to the witness anymore”. [T]hey could perhaps have done that a little earlier. (PS23)

A few commented that judges are particularly slow to protect them from inappropriate cross- examination by self-represented litigants:

If I was talking to a group of judges, I would say ‘isn’t it important that you protect your witnesses from that kind of behaviour?’ because the sort of [self- represented] person that I’m talking about is aggressive and in some cases personality disordered. There is a lot of judicial intervention required anyway, and [where] questions are inappropriate. I don’t really think that that’s a question I should be answering. I think judges must take control and they don’t always. It’s their court, they should be managing it without fear or favour, and sorry if that means giving plenty of directions to a self-represented litigant. (PS22)

3.5 Time and Inconvenience

Along with the stress of cross-examination, the most significant difficulty expert witnesses experienced was the inconvenience of court appearances. A significant majority of the experts complained about this.

I think anyone in my profession who has to give up other commitments to attend court is frustrated by the intrusion into your professional time. You know, we feel that in the space of a day or two having to travel to and appear in court we [could be] doing a lot more useful things for our patients but I guess it goes with the job. (PA5)

One, who does not often attend court himself but manages those who do, said:

My big issue for court (as for everybody) is that it tends to be a major time commitment. There’s a lot of time involved in writing reports and preparing cases and spending time in court. For busy physicians that’s a challenge. [I]t’s pretty disruptive but it has to be done. [ . . ] [F]or the majority of people it’s a very infrequent event that involves an awful lot of work and significant disruption to their routines: That is by far the biggest issue. “Oh god I have got to go to court, I’ve got to sit there for two hours and then they don’t want me and I’ve got so much paperwork to do and I have got these cases I have had to cancel.” You know: That stuff. (PA10)

3.5.1 Lack of notice of trial times

The first aspect of this was the uncertainty of the timing of appearances. About half of the experts mentioned this as a major issue.

[S]ome of them [Family Court lawyers] are good: They’ll write and say “I’m going to court on this next week. Can you tell me your availability in the next four months?” so you can say which weeks you can’t do or which days and that’s really considerate. [But others] might ring you and say “by the way it’s at court next week.” (PS23)

3.5.2 Extra workload

Experts stressed the importance of preparation to the quality of their work in court. However, they found the work extremely time-consuming and that it is hard to accommodate the extra workload.

[W]hen I have something big it was like a huge burden on top of my normal work and I would have no time within my normal day for it. (PA8)

3.5.3 Disruption to normal work

The time required for preparation and for court itself is on top of the experts’ normal work, a state of affairs which causes considerable additional stress.

[I] t’s quite difficult to go to court because I have to juggle between all the other work that I do. I’ve got the court case but I’ve still got my medical work. My clinical work still goes on if there is a court case. (PA1)

The extent of the disruption not only to the expert but also to their patients was frequently mentioned.

It’s a day off: That means cancelling [multiple] appointments; cancelling operations. It’s a big deal financially and logistically. (O18)

3.5.4 Rescheduling appearances

The difficulty of accommodating court appearances in a busy schedule is compounded by the frequent rescheduling of appearance times without notice.

[Y]ou have multiple phone calls saying you are going to court tomorrow and then you get a call in the evening saying “well, no, you are not going to court . . . we might need you on the stand in the afternoon.” And then you get to court and they say “Actually, no, it’s not going to happen for a few days.” [ . . . ] I am pre-booked weeks ahead of time and it’s not easy for me to find that on the day suddenly I can’t do a clinic because it’s not that easy for someone to step into my shoes. (PA1)

It’s awful. I had a case recently where I was all ready to go to court each day and I think it was cancelled about three or four times and put off to another date. I was prepared and I’d be ready to go to court and I would have organised childcare and the whole thing and it would be put off for some reason. So that gets really frustrating. (PS26)

Some mentioned that there was a lack of courtesy in the way in which rescheduling is handled.

I think the courts sometimes just have no concept of how busy people are. They just expect you to come along at any particular time and just wait. “Oh, sorry, doctor, we can’t get you on today, can you come back tomorrow?” Well, hang on a minute, I’ve got a surgical list tomorrow and I can’t. It takes a lot of organising to get these people along [and] the courts sometimes are not quite as considerate as perhaps they should be. (O19)

Having cases listed on as back-ups401 was criticized by another expert:

[When] they are on the back-up [list] it is very inconvenient. One’s coming up there’s a back up for in September and an actual date allocated in November. The judge wants me to sit through the whole evidence of everybody so I’ll be allocating three days to a case that may well not happen in September, but there’s nothing I can do to fix that. (PS23)

The courts’ scheduling practices are a particular burden to out-of-town experts and GPs in smaller practices.

[C]alling expert witnesses to court is not such an issue in the city but particularly, [for] GP’s in a rural general practice they have to take time away

401 A “back-up” is where a case is listed to come on for trial at short notice should the case listed first fold unexpectedly. This process is generally considered inappropriate for cases involving vulnerable witnesses.

from work: How difficult that is. [One country GP] had to close her surgery for the day [and then] it was delayed and it was a day out. And, literally, what does she do financially, because she employs people? It’s just very difficult [with] that uncertainty. [L]ocally I am quite proactive in saying “ok when’s the trial”, the week before because it’s often not the day that they say it is, and then [I] work out what the best time for me is and they will make every effort to say “right she’s in the afternoon.” In Auckland, if they are running late they will ring up and say “we are running late.” That’s [inconvenient] but at least I know what’s happening. If you are [from] out of town that’s really hard. (DS11)

The adequacy of payment was actually only occasionally mentioned. However, most of the experts we interviewed did not rely on court work for their income: The issue was the lack of recompense for the loss they made by attending court.

[I]t’s incredibly stressful: [Y]ou get poorly compensated [and] it’s not that convenient. (O19)

3.5.5 Delays at court

Many experts said they are frequently kept waiting at court for hours if not days. They described this as extremely stressful and disruptive.

I went and sat for six hours in the District Court having cancelled my clients and everything and then after six hours was told I was not really needed after all: That sort of stuff happens and, yeah, it seems an enormous waste. (O18)

One was very grateful when a judge was prepared to sit late to prevent her having to stay overnight to appear the next day.

The court’s apparent waste of time in breaks and recesses was also mentioned:

I get really hacked off with all the bloody lunch breaks and afternoon tea breaks. I realise it can’t be too long for the jury but it seems like it’s just constructed to frustrate everybody else who has got anything else to do. But I know there’s a whole lot of stuff behind the scene that I’ve never seen. (PA8)

Again, there was mention that time was better managed in more serious and physical abuse trials.

[I]t depends on the prosecutor or it depends on the case. So sexual abuse cases are usually badly done, [although] from our perspective it’s a much easier trial whereas some of our physical abuse cases where it’s a much broader range of things, it’s different: In those more serious trials it’s managed better although there’s often a “let’s get you in on this day” and then it’s a week later. (PA2)

3.5.6 Delays before trial

Some experts also criticized the lengthy delays between the expert seeing the complainant or witness and writing a report and the trial. While sometimes the delay might be weeks or months, in others it might be years.

Usually about two years later we get an email saying “oh, that child you saw two years ago, it’s time to come to court for them.” Well, of course, the memory of the examination is completely gone by then, so you are just relying on the clinical notes and the photographs. (O18)

Delay was also an issue for some Family Court experts who experienced problems ensuring they were informed about any developments between writing reports and the actual hearing.

3.6 Unfamiliarity with Court and Lack of Training

Nearly half the experts described the strangeness of the environment of the court and the unfamiliarity of its basic protocols as stressful and a barrier to their full participation in court.

It’s an extremely different environment to what we are used to in psychology. As therapists and psychologists we don’t physically work in a formal environment so that’s a big adjustment. I can imagine it would put some people off. (PS26)

It’s probably fair to say that it was for me quite an intimidating environment, very different from the clinical kind of environment. It does take a little bit of getting used to as a medical person, to adjust to a more adversarial kind of process. (O20)

The disconcerting effect of the “little rituals” and protocols of court were mentioned as a difficulty several times:

My first time in a courtroom I didn’t even know where to go. You kind of feel like already you are in someone else’s domain. You don’t know whether to sit down, to stand up, [or] whether you hold your hand up when you do your oath. “Do you want to take an oath or affirm?” “Pardon?” Already your pulse rate’s 120 and you’re sitting there thinking “Oh my god”. (DS14)

It is clear from the above that often experts are worried about what are to lawyers quite basic issues of protocol. This is underlined by the comments of one expert, discussing the interviewer’s query as to whether a simple “reminder” pamphlet might help:

I think that would be an excellent idea and I am sure that that wouldn’t take that much work to do. [V]ery few of us go to court an awful lot [so] it’s never unnecessary to be reminded of things. [There may be] something that perhaps you have read but not taken in, because it hasn’t arisen. I think particularly just reminding them about what the expert witness rules mean. (DS11)

This comment underlines that whereas it might be assumed that unfamiliarity with court protocol is only an issue in experts’ initial appearances, in fact many expert witnesses appear only occasionally (e.g.; once or twice a year) and therefore are likely to forget some protocol in the intervening periods.

One issue which was highlighted by the experts’ problems with the unfamiliarity of the courtroom environment is the lack of proper preparation and training for court.

Not one expert discussed having received help from lawyers in learning how to answer questions or even about basic court protocol, except for lawyers who presented or assisted at seminars established and run by experts.

Experts often mentioned that they had had no training before their first appearances. The shining exceptions to this are more recent members of DSAC (the organisation of specialist medical examiners who investigate sexual assault allegations). However, some experts began appearing before DSAC had established its training regime for its members, others before the programme was extended to paediatricians. None of the other disciplines have any regular training programme.

Not [on] how to appear in court or anything. [We were] [a]bsolute lambs to the slaughter really. (DS14)

Absolutely none. Still haven’t had any formal training. It was just really learn on the job and go along to court and watch some of your colleagues and that was it. In New Zealand that’s still what’s only available. (O19)

In the absence of other training, some had obtained advice from senior colleagues. For some this appears to have been relatively extensive and one even had the opportunity to observe a colleague in court.

I got sat down [by a senior colleague] and we went through the notes, we went through the case, so he was pretending to be the lawyer and make me rehearse how to say things, how to practice, explaining things. It made such a huge difference. (DS13)

A number of the psychologists also reported that they obtained extensive help in supervision sessions with colleagues with court experience. Others, however, had only the briefest discussion with colleagues, or even other experts met by chance.

[I had] [a]bsolutely nothing. I basically spoke to my [senior colleague] and said “What do I do?” and he said “Oh, you’ll be fine.” I can’t remember the very first time I went to Court. I know I was really nervous, and I know that probably the first time for a long time afterwards - and [even] after all these years whenever you leave court - you often wonder whether you could have explained something better or whether you explained something not enough. (PA1)

Well I vividly remember my very first one. I waited with an ESR scientist who was lovely. He was very experienced and [said] “OK, so you know you haven’t done it before. Just remember to speak slowly.” That was quite reassuring but apart from him nobody else was there. (DS11)

Several more had attended early DSAC courses, but still found initial appearances very difficult.

It wasn’t very much at all. I was doing mainly children in those days and I had been to the DSAC training course, we had gone to see a Court appearance, you know attending trial as it were and we watched while two people were giving evidence and there were some general comments but that was all and briefs were not peer reviewed at all so I was really on my own in those days. (DS12)

Others had done some other, non-DSAC, training, but these sessions tended to be short, ad hoc seminars.

The only training I have been to is there was a training recently put on by [X] and [Y]. And [Y] was my supervisor so I had regular supervision with her. (PS26)

The absence of training was often regretted and those who had had no or inadequate prior training experienced considerable confusion and stress in their early appearances.

You really do need a bit more instruction before you go along. You really have no idea what to expect. It was quite a few nights, especially for the first court case, just reading everything I could trying to cover every single angle that could come up during the trial. [ . . . ] There is no training from a medical point of view: There’s no training in medical school anywhere about how to present yourself in court, there’s no training on preparation for court-work, there’s no training on how to answer questions or how to address the judge. It’s pretty much go along and fly by the seat of your pants. (O19)

The experts agreed that having little or no training before court was detrimental to the quality of their evidence.

The very first time I had no idea what I was supposed to be doing, the judge was very kind and sort of went along. Fortunately, it was relatively innocuous. (PS25)

Many described incidents were training would have helped or situations in which training has helped them. Many such examples will be discussed in the context of cross-examination. The following is a good summary of these comments:

If he asked me the same things now I would have been able to respond in a different way and the questioning would have probably stopped. I didn’t have the skills at that stage to understand what he was doing or how to respond to him. (PS26)

One remarked wistfully:

I’ve become more confident over the years but I think what would help is very definitely aspects of clinical psychology training being devoted to forensic work: Appearing in Court, cross-examination, going into a Courtroom. That was never anything that I had opportunity to do. So I felt it was a bit of a baptism of fire. (PS21)

3.7 Media/Public Exposure

Some also commented on the stress of public exposure and media publicity.

It’s a very public arena as well. It’s quite exposed. I mean what you’re saying, they are listening to every word you are saying. (PA2)

Several were concerned that the media had misrepresented their testimony and painted them as biased.

They [the media] can misconstrue what you are saying potentially or pick out stuff so that you don’t necessarily have the whole picture to it and that’s probably the worst thing in trial. The court media reports where you sit there and go....”uhhh? I am pretty sure we didn’t say that”. (PA2)

[The media suggested] we just dug our heels in and didn’t change our opinions. People don’t seem to understand that you’re a doctor and you’re constantly having to review your position [with] every patient you see. So the assertion you wouldn’t change your mind because that would affect your ego is revolting. I wouldn’t ever want to be responsible for someone being convicted of something because I have dug my heels in and didn’t give an objective opinion. (PA8)

One also worried about the impact of publicity about her testimony on her professional relationship with her patients.

3.8 Summary

The experts identified a range of difficulties with the way in which the court approaches their evidence, which are the reason for the dislike of court reported in the previous section. First, they are often concerned about the jury’s ability to comprehend their evidence and also have some doubts about the judges’ and lawyers’ comprehension, although they have limited opportunity to observe the jury or judge and so their comments are speculative. They believe the fact-finders are unduly swayed by peripheral factors, such as appearance and confidence. They have concerns that fact finders’ difficulties increase where there is opposing expert evidence.

Second, they are very concerned by the general inadequacy of briefing by prosecutors and some Family Court lawyers. “Fifteen minutes at the courtroom door” was a frequent refrain. Their concern was not about the lack of opportunity to learn about the court process but about the lack of opportunity for them to educate the lawyers about their evidence in order that their evidence is elicited properly. Some Family Court court-appointed experts are concerned that some lawyers for child now refuse to brief them following a Principal Family Court Judge’s Practice Note.

Third, cross-examination is not respected as a method of testing evidence. They were concerned that some lawyers are insufficiently knowledgeable to mount a proper critique, missing important points or focusing on irrelevancies. They also identified a range of specific cross- examination tactics as unfair or misleading. While some have developed ways to combat or stymie these techniques, it is clear that less-experienced experts can find themselves frustrated and obstructed from giving best evidence. While some judges intervene to prevent inappropriate cross-examination some do not.

Fourth, they find the time required for work as experts extremely hard to accommodate and are very stressed by rescheduling and by delays before and on the day of hearing. They report that cases often involve multiple delays and rescheduling, including hours or days of waiting at court.

Sixth, many found the court environment and protocol difficult and stressful, to the extent that it impeded their performance.

Finally, some commented that media coverage of their appearances is difficult.

  1. Opposing Experts

As was discussed in the sections on jury and judge competence, many experts had concerns about the ability of jurors and judges to assess the relative expertise of opposing witnesses. This section considers the problems the experts saw with the opposing experts themselves, including the processes in place for contact and cooperation between experts.

4.1 The Quality of Expert Witnesses

The experiences the experts described having had with opposing experts fell roughly into two camps: Those expert witnesses, often professional colleagues, who were in general respected, despite professional disagreements, and another group of expert witnesses, local and international, of whom they strongly disapproved.

[T]here are a lot of nutters out there, certainly in the UK and the USA. I don’t think it’s quite so much here, in fact I think most of the people who appear in New Zealand courts are very respected, it’s just that they have different opinions and that’s fair enough. But I think they [the courts] are leaving themselves open to the situation that people are paid quite significant sums of money to appear as expert witnesses and come along with all sorts of crazy ideas, none of which is based on evidence, it’s all based on hypothesis. (PA5)

Almost every expert had some strong comments about the quality of some opposing experts they had encountered. Nearly half gave examples of experts they consider seriously substandard who are still or were for considerable periods, relied on by the courts.

Well, one of the things you do wonder about is how on earth the legal system even allows people like [that] to keep going all these years. (DS12)

The experts identified several specific issues with experts they see appearing in the courts.

4.1.1 Parachute experts

First, there was a perception amongst some that the fact finders accord overseas experts more status than the home-grown variety. In the words of one, the courts are too ready to accept “some hot shot [from] the US that just comes across really well.”

4.1.2 Fringe practitioners

Several commented that some defence experts are on the fringes of medical practice and are not reputable. However they had concerns that the fact-finders were unable to put their evidence in its correct context.

[Defence experts in recent years] make statements about injuries which is really . . . not backed up by mainstream sort of experts in the field and they make the most bizarre statements. which confuses the jury and in cases result in acquittals which clearly is not right. [I]t is hugely frustrating. (PA1)

One commented that these fringe practitioners are often introduced from overseas because support for a seriously marginal viewpoint cannot be found amongst the local medical fraternity.

Generally expert opinion is that if you shake a baby the child will show clear evidence of that brain injury virtually immediately. One of the chief reasons for bringing in the hired gun defence experts is they will give evidence that there can be a latent period, which is not an opinion that is widely held at all in New Zealand at the moment, not in child protection. (PA3)

4.1.3 Biased experts: barrow-pushers and hired guns

Most of the examples of poor experts working in the courts related to those the interviewees saw as either biased or as hired guns.

Many were concerned about the repeated appearance of experts they saw as intellectually dishonest “hired guns”, prepared to change their opinions as required for payment. Again the experts found that the courts were unable to see through the issues with these practitioners.

[T]here are, I think it’s kind of well known, experts who [are] hired guns who will provide whatever opinion is sought and for those people who do get ongoing work from being a hired gun, some of their income is generated by being willing to find an argument that will support one side or another rather than just looking at all of the information in a particular case and coming to a truly independent view on the matter. (O20)

Another expert discussed a renowned colleague from overseas whom she believed had deliberately presented a partial account of the evidence in order to fit the defence case without himself believing the interpretation he put forward.

Even [expert’s name] who has come and done some stuff, [he] is very intellectual but managed to academically undermine something that he really didn’t believe in. I find that very distressing. I don’t think [name] was the reason [a child murder case was lost] but it made us feel very distressed. But it also undermined [the prosecution expert] and we required [him] to continue to do the work because it’s really important work he’s doing and having someone undermine you like that is very hard. So it’s about the selective sense of getting it wrong I guess. [B]eing undermined by an expert witness when they are telling lies is bad enough but being undermined by an expert witness who you trust is even harder. (PA4)

Several also expressed concern about experts who, rather than being prepared to change their views for pay, were highly biased and pushing an agenda.

[T]he problem with the current system is that [with the] defence the way it works is that it actually encourages people who have got agendas to actually be able to use the expert witness [position] in their agenda. [. . . ] [Y]ou can figure out guns for hire [but when] there’s an agenda there and you [the expert] sort of get caught in the cross-fire [it is difficult]. (PA8)

[One particular defence expert] I find very distressing because she has this argument that leans heavily on bias and opinion and its disinformation. It’s half-truths and the way the defence lawyers lean heavily on the half-truths to put doubt in the mind of the jury makes me just so [frustrated]. That’s when I

lose my temper because I get distressed when the defence lawyer has got a brief of evidence from [expert’s name] and I have read it and she’s stuck it at me about the way I have written my report and stuck it at me about the stuff that is not relevant. I turn up with diagrams and she turns up with pictures from Atlases and goes “this is what a six year old looks like, how could you possibly put a penis through that?” and it seems really inappropriate. So it’s her half-truth and it drives me crazy. [Another defence expert] again he was a real bug bear because he was a half truth-er. (PA4)

One described a defence expert misrepresenting the research literature:

[S]he just misrepresents what you’ve said [and] the literature, completely misrepresents it. It was embarrassing; it was absolutely embarrassing [and] astonishing. (DS12)

She was concerned that this same person had however been believed and accepted as an expert by the courts on many occasions.

4.1.4 Ignorant experts

Some also commented on experts who simply did not know enough.

[Defence lawyers need] better experts advising them. It’s kind of the controversies in the literature don’t tend to come up or the ones that come up are the ones who were in the literature 10 years ago. (PA9)

Another commented about a defence expert who was felt not to have engaged with the research literature properly (DS12) “I was so upset about that [case] because it was embarrassing to hear her in court” and yet the defence expert’s evidence was accepted by the court:

I had a box and I had folders [of] my papers, my briefs, and they asked me a question I went to that, got it out and was all ready but she fluffed about and didn’t know and “sorry I haven’t read that”, [including] one of the main ones. The lawyers said “Well, here you are, Dr X, maybe you could read it over lunch.” It was embarrassing. For goodness sake you are appearing in the court [and] you haven’t had the decency to read all the papers. I read all the papers, not [just] the papers she got from the 1970’s and 1980’s. (DS12)

A few also suggested that some issues with some experts were due to their ignorance of their ethical responsibilities in court.

When there is a very aggressive adversarial approach going on and you have medical experts taking on a very biased approach [i]t’s very difficult because I know [it’s] not the way that things are meant to be done. But when they call doctors who haven’t had the training and they don’t know how the Court system works then that’s the sort of thing that happens. (DS13)

4.1.5 Overstepping limits

Closely related to these concerns about unqualified experts are concerns about experts who cross professional boundaries into areas in which they are not specialist. Again, the experts said that the courts do not appear to notice their transgressions.

What I do have issues with is other people giving evidence which I don’t think they are qualified to give. It’s becoming very blurred. People are being put on the stand as experts and they’re actually crossing the boundaries into areas for which they have no training and no recognised qualification. I’m talking about paediatricians who are commenting on post-mortem reports and about forensic scientists who are commenting on pathological science. The rules for expert witnesses need to be perhaps more strictly applied. (O19)

The issue of experts having difficulty asserting their expertise over less qualified colleagues also arose earlier in the competence sections in relation to the courts’ difficulties understanding the significance of the person’s qualifications and of clinical experience versus apparent seniority.

A few years ago I looked very young, and so I’d be looking like someone who’s maybe in her 20’s even though I was in my 30’s or early 40’s and the defence witnesses would always be 60 year old men in suits. Even though they are a man in a suit they’ve got no experience in this area or relevant experience. (PA9)

4.1.6 Unduly firm conclusions

Some experts also took issue with experts who express firm conclusions even when it is not appropriate to do so. They believed that fact-finders are unduly swayed by more decisive experts. The more careful expert will lose out to the unscrupulous or biased expert prepared to offer a decisive opinion.

[P]eople who are more definite come across better in court even though I think that often those people are definite about things that you can’t be definite about. I think that comes across much better. I guess people who are mostly called for the defence are definite about things you can’t be definite about. (PA9)

4.1.7 Disciplinary action

Several experts suggested that increased disciplinary oversight by the courts and professional bodies might be helpful in preventing poor quality experts coming before the courts.

Unfortunately it’s going to take lawyers and judges and the court process to whip psychologists into shape a little bit. [I]t was insurance companies and an adversarial process that ensured that psychologists’ evidence would be deemed inadmissible: It wasn’t psychologists themselves getting this order and saying “this isn’t good enough.” It was the courts and lawyers saying “this isn’t good enough”. (PS21)

A couple commented on having complained to the Medical Council about the conduct of other experts in court. Neither felt that the Council had taken the complaints sufficiently seriously:

I’ve had I guess one or two where I am in the mood to write in a complaint. Once I did write a letter of complaint to the Medical Council. Of course that didn’t go anywhere which is difficult because there are no jurisdictional facilities to address this kind of legal issue. New Zealand’s never [disciplined an expert witness]. There have been a couple of cases where they definitely should have. I wish that the Medical Council would take more interest in this, because it is important. (DS13)

However, a greater number of experts felt disciplinary action and complaints have a dampening effect on even good experts’ willingness to testify.

4.2 Contact and Cooperation Between Experts

Schedule Four of the High Court Rules402 sets out the expert’s obligations in the civil courts, namely that they must be impartial and the requirements for their reports to be founded in an accepted body of knowledge. It also states that experts should consult with any opposing expert and produce a joint memorandum for the court setting out areas of agreement and disagreement. Although this rule was written for the civil courts alone, it is also applied in the Family Court. Further, in recent years many expert witnesses in the criminal courts refer to the Schedule as a statement of their ethical obligation of impartiality and that they have read and

402 Copy attached in appendices.

understood the Schedule is often led from them in examination in chief. The criminal court has recognised that Schedule Four accurately summarises experts’ ethical obligations towards the court and their obligations in writing reports but has said that those aspects concerning conferencing and joint memoranda do not apply.403

Several experts, especially those from the Family Court, had had the experience of critiquing colleagues, both in written reports and by appearing in court in opposition. Generally they respected the opposing witness and their criticisms were often quite moderate.

[S]ometimes they are hard work and that’s a bit different, but mostly they might be people who might not [be] writing particularly well. Usually that’s what it’s about, you know. I’ll say “well you’ve arrived at this thing here and you know I’m not sure why you’ve done it that way and it looks to me like me you are really opposed to this, really where are you at on it?” And they’ll think, “oh god, both her and I actually agree”. [O]ften the [final] position [is that], someone will ask for a critique and them find themselves in the position of having two psychologists largely in [the same] mind on the main points, so I actually think it’s probably more helpful that you [are] used to help with cross, except for the very poorly written reports [where your appearing in court is useful]. (PS23)

Critiquing or being critiqued by a colleague could be uncomfortable.

Once I had to disagree with a specialist colleague who taught me and that felt awful so I asked for permission to ring him and discuss it beforehand. I was able to ring him and say “look, [your evidence is] not the truth and I’m more up to date with this than [you].” I felt terrible at the time. (DS27)

However, only one found giving second opinions so difficult that she avoided critiquing colleagues in her community:

People got quite defensive and I’d rather have the collegial relationships so I’ll do one with someone somewhere else but I have decided I am not doing them here. (PS23)

Aside from the emotional impact of second opinions, the formal process for such opinions, especially in the criminal court, drew criticism from many experts. The rest of this section discusses the experts’ comments regarding the disclosure of reports and the processes for experts to communicate with each other about their evidence.

4.2.1 Disclosure

Some said that in criminal trials there is a lack of proper disclosure of the fact that the defence would be calling an opposing expert or of that expert’s report. They would then be ambushed with information from the report in cross-examination, as described above (see “Specific cross- examination tactics”). Under the Criminal Disclosure Act 2008 opposing experts’ reports should be disclosed at least 14 days before trial. However, several experts described receiving reports “as you are going to court” although they might have been told that an opposing expert would or could be called “a week” beforehand.

I’ve often been aware that there may be [an opposing expert called]. When I get to see what they are saying is often quite late: So that might be as you are going to court. [S]ometimes I’ll get it so that I can respond to it prior. Not so much on the sexual abuse ones. You often don’t see what they are saying until quite late. (PA2)

403 R v Seu CA81/05, 8 August 2005; see also discussion in Chapter One.

I think I’d usually know [that an opposing expert would be called] but not often who or what they do or any of those kind of things. (PA9)

Conversely, one commented that:

It would be very unusual not to see the reports. That does sometimes happen, usually when you have certain well-known defence counsel who are renowned for dodgy behaviour involved. (O20)

It is clear that late disclosure of opposing expert reports creates a great deal of stress and work.

It’s stressful in that you get a call from the prosecutor at 7pm saying “we just had this information sent through from the defence medical expert witness. We need you to read this through tonight and I’ll call you in the morning and get your response.” [Y]ou just have to drop everything. It doesn’t matter if you’ve been on call and worked the whole night It’s all very short notice. (PA1)

Getting a report late puts experts at a disadvantage in terms of formulating a meaningful opinion.

[Y]ou often get defence or the defence statements and their expert opinions very late. I was on the stand in the afternoon and [was to go back on] early the next morning and I got one of the briefs that evening at home and then they asked me about it the next day. So you are sort of on the back foot. (PA8)

One pointed out forcefully that without prior knowledge of the opposing expert’s report, the expert will not know to provide additional information to the court which may resolve a criticism.

[I]f I hadn’t had his evidence before that I wouldn’t have known that that was going to be called into question and I wouldn’t have been in the position to bring along to court my evidence to refute his comments and it sort of surprises me that we don’t always get that. (O18)

Proper access to the opposing expert’s report could also reduce the issues in dispute. Another expert discussed how she and a colleague modified their reports after reading the opposing expert’s evidence:

The two of us that had been looking after the child had a chance to look up all that literature and then modify our reports and we actually changed to say “we actually agree with this”. (PA9)

4.2.2 Joint reports

Some experts welcomed the opportunity to discuss their evidence with the opposing expert, seeing it as an appropriate method of decision-making and a way of reducing the issues before the court.

[It] would be really sensible even if you could then present the court with “this was the bit we agree on, and this is the bit we don’t”. Then at least we could focus on that and more easily get through the stuff we all agree on.” [ . . . ] I think it’s much easier for the court if the experts can agree on what they can agree on and then just discuss the controversy. (PA9)

However, a few expressed cautions that that in some cases discussion will achieve nothing as some experts are too rigidly entrenched or are simply hired guns.

Some of these people, professional expert witnesses, particularly these ones who come from overseas, I don’t think anything I can say to them is going to change their view because they have a financial incentive to say what they are saying. (O18)

4.2.3 Frequency of contact

Contact between experts appears to vary between courts. In the criminal court it appears that contact is rarely more than a fleeting courtesy call. It is clear that joint discussions do occur but only rarely. Experts were generally in favour of such discussions.

[O]ne of the biggest things that need to be sorted out [is] where you have the very difficult situation of where you have two experts for the defence and for the prosecution disagreeing on certain points. There needs to be a way of trying to sort that out. I do know that there have been attempts in some cases. I haven’t been involved myself with meeting face to face with the defence expert witness but I know some of my colleagues have: Where they can discuss on both sides where they can agree and come out with points they agree or disagree on. Then at least you can cut down on maybe some of the issues that way. And that may be a good process. (PA1)

4.2.4 Lawyers discouraging contact

One reason contact between experts is so minimal may be that lawyers frustrate attempts.

[T]he judge [in a criminal trial] had said all the experts on both sides should get together and they should talk beforehand and sort out our points of agreement but then the defence never wanted that to happen so it never happened, but we were happy to do it. (PA8)

A few commented that where they are asked to review an expert report lawyers tolerate their contacting the opposing expert as a courtesy but actively discourage them from sharing their report or discussing concerns. Another discussed “asking permission” to talk to the opposing expert.

Possibly “subtly discouraged” is a good way of describing it. So for example when I asked to do the defence opinion I will say “yes this is my charge, this is the amount of time I think it will take and by the way as a matter of courtesy I would like to inform the other doctor that I have been asked to give an expert opinion.” I haven’t had anybody say “no, you can’t do that”. In the past I have had somebody ask “you won’t be giving them the report will you?” So, there is a sense that, (it’s the same for the prosecution I have to say), you know in preparing a report for the person who called you that in some way you belong to them. (DS11)

This expert suspected that the defence would refuse to pay for any joint discussions she tried to organise.

[If I said] “I also want to go through this with the prosecution expert and that might take so many hours I don’t know how that would go, I mean, I’d like to try it actually. (DS11)

One went on to say that making contact in the criminal court was made more difficult by the fact that experts were unsure of how much to do or how to go about it.

I don’t speak to them so much as let them know, so I usually email them. [Because] I understand from the prosecution that that [consulting the other expert] hasn’t really ever taken off in this country. If it’s going to happen it should be facilitated by the law not [by] an independent action by me. [I]t is not something that I should be doing off my own bat. [B]ecause when I asked about it that was what I was told. [ . . . ] I think it’s discouraged by absence of information. I know that it is in our rules about being an expert witness [but] I’ve never had anybody explain how those rules might work in practice and

I’ve never generated the discussion myself because I really haven’t had a forum to do it. (DS11)

As stated above, the aspects of Schedule Four regarding joint discussions have not been accepted by the criminal court. There is confusion about this.

4.3 Sitting in on the Opposing Expert’s Evidence

One way of approaching opposing expert evidence is for experts to sit in on each others’ evidence. The practice seems more common in the Family and mental health courts than the criminal court. In the criminal court it appears more common that defence experts will sit in on prosecution experts than vice versa.

Experts who had sat in found doing so helpful. The benefits included the possibility of modifying one’s own opinions as a result of hearing the opposing expert’s reasoning, of being able to help the lawyer to critique the opposing expert, and to act as a moderating influence on the opposing expert.

A few commented that they felt that experts would be less likely to give inaccurate or overstated evidence if they knew a peer was present listening.

[In my next case] I will go and listen to her evidence and she will listen to my evidence and I think that me listening to her evidence will keep her a lot more honest that she’s been. Because she talks a lot of psychobabble and she’ll think that she can bullshit non-psychologists but you can’t bullshit your own very easily. (PS25)

This same expert commented that in another case where she sat in on another opposing expert’s evidence “he really sweated and I think he gave a lot better evidence.”

The main issue preventing experts sitting in is time. Several experts from the criminal court said that they would like to sit in but that it was too time-consuming. One commented that her Family Court cases are shorter and the expert evidence tends to be called on the same day, whereas in the criminal court the other expert generally appears days or weeks later.

We don’t usually get time to actually go and sit in. I’d love to sit in because I think it would be very useful. (PA2)

Some also reported that some criminal court counsel are unaware that there might be benefits in having their expert sit in on the opposing expert’s evidence.

I found myself having to suggest that rather than be told. [A]nd I thought well what’s the meaning of this? Should I be sitting in? I mean I would have thought they would want me to listen to it. So that was a bit weird actually. They need to get much, much better about that, much better. (DS11)

Some experts were themselves unsure whether it was possible to sit in on criminal cases.

They [opposing experts] always sat in on mine and yes, I’ve had the chance to sit in on theirs, which I often, usually have done in Family Court but not in criminal court. Are you allowed to be in for the other evidence? (PA9)

4.4 Summary

The quality of experts appearing in court is a major issue for those we interviewed, as is the process for dealing with opposing evidence in the criminal courts. They are particularly concerned that some expert witnesses they encounter lack the proper objectivity and understanding of their role. They are especially concerned with a small group of highly persuasive experts called particularly by the defence, some of whom they see as “hired guns” and some of whom are activists pushing barrows not supported by science. They are concerned that the court is unduly swayed by these people and takes a long time to recognise and reject unreliable experts.

They largely favour greater cooperation between opposing experts, although managing the contact can be difficult. Experts called to critique other experts in the criminal court find that contact with their opposite number is often discouraged by counsel.

5. Self-Help: How Experts Attempt to Manage the Challenges of the Adversarial System

Experts described a number of ways in which they attempted to alleviate the problems they experienced with the court system.

5.1 Proactive Experts

One of the primary self-help strategies used the experts to whom we spoke was to become proactive and to manage their own evidence and appearances instead of relying upon the lawyer calling them.

5.1.1 Taking charge of briefing

The importance experts place on adequate briefing has already been discussed. Many experts agreed that to ensure sufficient, or, possibly, any briefing, the expert themselves had to initiate contact and chase the prosecutor. This appears to be is standard practice amongst DSAC doctors, for whom initiating briefing is part of the advice given in training courses.

It’s all self-directed. I usually put a note to myself in the diary the week before [to] find out who the prosecutor is. Then I ring them. I’ve learnt not to do it too much in advance because they haven’t a clue [about the case]. I ring them, I say “OK, I’ve had a look through the report and I try and use diagrams now, you know, and are there any other issues you think are important or that might need to be explained more?” If I can I will go and meet face to face with them because I find that useful. [. . .] [Doctors must initiate contact since] it won’t happen otherwise. (DS11)

Another commented that the need to be proactive extended to ensuring that the lawyer understood where there was an area of weakness which needed to be brought out in order to neutralize it as a cross-examination point.

[I]f I think that there’s a problem I’ll get that called by the lawyer for the child and see where something’s going. [W]ith an error, it’s much better to lead it out. If you look back when looking over the work and you think, “hmm that’s a gap”, I’ll acknowledge that it’s that. (PS23)

5.1.2 Taking charge of examinations

The need to manage one’s evidence extended to managing the examination itself.

Examination in chief

Experts actively ensure everything relevant is elicited during examination in chief.

[T]he other thing that I’ve learnt is that because I am an expert witness I’ve got to think about what I want to tell the Court and then I look for an opportunity to tell them so someone might ask me something that I will give an answer to and if I want to expand it in some way to make the point I want to make, I’ll use it: I look for times where I can develop my case.

[I learnt from experience] that I must never, never, ever trust [the lawyers] to get the information that I want out; that I have to do that; if they don’t ask me I am going to have to pull it out. I have taken a list of bullet-points along. (PA4)

Some experts also take charge of their evidence in other ways, emphasising the need to “be much more creative” about how their evidence is presented, particularly in the use of visual aids, from Power Point to anatomical models.

However, there were limits to what the experts could do. One commented that while she feels obliged to take charge of her evidence, she is less skilled than a competent prosecutor.

[If] I think it is important then I will manage to find a way to get it in and sometimes it’s irrelevant and too much and overwhelms the jury and I haven’t got the hang of the jury as well as the prosecutor has. So I find that a little frustrating sometimes. (PA4)

Being a competent manager of one’s own evidence can also backfire, and leave the expert looking too knowing:

It really comes to the skill of the lawyer. If you’ve got someone who doesn’t know what they’re doing, it’s very hard. You tend to be looking like you’re trying to manage the process yourself. (PS22)

Cross-examination

Similarly, there was a clear belief that experts must learn to manage cross-examination so that their evidence and their competence was not misrepresented. As one remarked of an incident where her evidence was obstructed because she followed the cross-examiner’s suggestions:

From that point on it had to be what I was trying to tell, not what people were asking you to tell them. (PA4)

[Y]ou’ve got to be an active part of what’s happening to do it well [and not be] just waiting or hoping that it’ll stop, which is how I was to begin with. [My attitude was] “get this over with; ask me the least questions possible”. (PS23)

Thus some experts have developed the arsenal of techniques for combating each of the various cross-examination tactics described in detail above.

Some defensive tactics are employed even before the expert is called in court. Several experts discussed a strategy where they limit the amount of information in their reports to reduce the cross-examiner’s opportunities to undermine their evidence. This avoided miring the jury in irrelevant detail.

[I]f you reference something that you said they get the reference paper out and ask you about some little tiny sub-point or something or other that you know that you can’t possibly remember, so you end up going down some little alleyway which is nothing to do with the substance of the reference but it’s all about making it so the jury thinks I am far too difficult and then don’t take any notice of that [evidence]. I coped with it by [not] using references. (DS11)

This same basic tactic is also apparent in what several DSAC doctors referred to as a policy of deliberate conservatism in DSAC reports, which they suggested reduced the material available for cross-examination. 404

[S]ometimes it was almost like we were going too far but I do think that because we were conservative that very often, in my court appearances anyway, all that was said was “well, thank you, doctor” ” [ . . . ] [I]f you have [done a competent job] they can’t really do a whole lot. (DS14)

Others made sure they in their evidence said all there was to say, leaving little to cross-examine on:

I tend not to get challenged a hell of a lot in either court [Criminal or Family] because I probably have been around for a while and I just make it all as transparent as it can be so there often isn’t a hell of a lot to ask me about – except just to reinforce some of the bits they like. (PS25)

Once in court, the experts adopted a range of strategies to combat various cross-examination tactics. The first option is for the expert to attempt to be impervious to attack: They try not to be rattled; they refuse to alter answers to repeated questions.

Other tactics the experts described work by making the unfairness in the question explicit. First, experts will declare the problem to the lawyer. One example of this is the way in which several experts deal with bundled questions.

[W]hat you say is “Look, I can’t remember all of those questions. Could we start with the first one?” (PS25)

Similarly, when ambushed on the stand the expert declares that they need time to consider the new information and refuses to respond to it.

If the lawyer repeats the same question, apparently to extract an inconsistency in evidence, the next strategy is to seek assistance from the judge:

I’ve had to say quite a few times “I’ve already answered that question”. And it’s repeated and repeated and I’ve had to turn to the judge: “Your Honour, I feel I have answered that question”. (PS26)

Declaring the problem with cross-examination questions may seem an obvious solution. However, the experts described needing considerable experience and often training before they were able to do so. Self-evident although they may seem, in fact they require considerable foundation. The expert needs a clear knowledge of the rules of cross-examination and what is considered a proper question. They must also have the ability to analyse conversation to be able to recognise what is happening and the presence of mind to do so immediately. They must then be able to articulate that to the lawyer and judge concisely and convincingly. It takes considerable courage to challenge a lawyer in his or her own arena. Declaring that a question is unfair is also an implicit challenge to the judge’s decision not to intervene him or herself.

Sometimes, experts do not bother to challenge the question but instead take the fight directly to the lawyer. For example, as was quoted above, one expert used repeated questions to give further information unfavourable to the cross-examiner’s case until counsel backed down.

If I keep getting asked over and over again, I’ll give a longer and longer answer until they stop. (PA2)

Experts like this woman are no longer passive recipients of questions and nor are they merely acting defensively: They have learnt to use cross-examination as a vehicle to give more evidence.

[The lawyer would say] things like “we don’t know [in] some of the studies about [X] that [Y], do we?”, and so I would say “well, no, that’s actually true, however . . .” and I would talk about something else. In fact cross-examination gives me a better vehicle for getting more evidence out often. (PS25)

Some lawyers react to experts’ increasing skill by limiting cross-examination, effectively refusing experts a platform for giving further information to the court. A number of highly experienced experts said that they often do not get cross-examined extensively, if at all. Thus the expert who is quoted earlier as having said “cross-examination gives me a better vehicle for getting more evidence out,” now finds that:

I’m not getting cross-examined very much. They actually pretty much shut up and [do] not ask me any more questions so I can’t [give more information]. (PS25)

Several experts also reported lawyers stop cross-examining after they make particularly forceful points.

[A] couple of times when I have got annoyed it’s actually worked better. [A]t one stage they asked me three or four questions about whether sodium would be a problem and, yes, it can be but this one wasn’t like that. I just kind of snapped and said “but the sodium at this level could not cause any problems” in quite a forceful kind of voice and he just said “oh right, ok” and moved on. (PA9)

While some lawyers may actually withdraw because they believe they have made a significant point by provoking the experts into losing their cool (see “Rattling” above), the experts believed that their sudden assertiveness had had a positive effect on the jury.

A few experts suggested that lawyers chose to limit cross-examination because “they don’t want to draw attention to something that isn’t terribly favourable to the client.” Another commented that on at least two occasions she had been instructed by lawyers in the Family Court but then not called at the heading and she later discovered these were ploys to prevent the lawyer for the other party retaining her. Similarly, the comment from a few experts that opposing counsel are offering that their statements can be read to the fact finders by a court official and that they do not have to appear for examination may suggest those counsel are seeking to de-emphasize their evidence. When opposing counsel accepts that a statement may be read only or do not challenge aspects of the evidence in cross-examination, technically they are accepting that evidence. This may appear a benefit to the party calling the expert. However, there are fears that, tactically, the lack of opportunity to discuss the issue orally may obscure its significance. Certainly, some experts believed that “reads” tend to be much less persuasive and comprehensible by the jury.

[H]aving somebody just read my report is hopeless. To me if it’s a jury trial they really need to hear you say it and have a conversation about it. I know[when I am] reading somebody else’s material I don’t have the same animation as they do or understanding of what they are talking about. [ . . . ] [S]ome colleagues are very pleased when they are told [that their evidence can be read] and they feel relief. I feel sad about that. (DS11)

That experts have developed strategies to combat various cross-examination tactics is interesting for several reasons. First, the fact that it requires considerable skill and experience to ensure one’s evidence is not misrepresented suggests that less experienced witnesses may be unable to prevent their evidence being obstructed or misrepresented. This undermines cross- examination’s value as an investigative method, but suggests that matters could be improved by wider access to court training.

Conversely, the fact that experts can (and do) develop the skills to subvert some cross- examination techniques also undermines its value as a method of investigation. It is both, in other words, an overly aggressive investigative technique and one which can be routed. That lawyers also apparently resort to refusing to cross-examine in order to neutralise particularly skilful witnesses, thus leaving the actual merit of their evidence untested, further underlines the essential strangeness of the medium as an investigative technique.

5.1.3 Knowing the law

Another aspect of experts’ taking responsibility for themselves in court was the knowledge many showed of the laws of evidence. A significant minority even criticised lawyers and, sometimes, judges, for not understanding the law as well as they.

[S] ometimes I think, for example, the defence is going to try and lead evidence which is not admissible: I just warn the Crown [in briefing] that if they start to ask me questions about [that] that we need to stop and talk to the judge. Sometimes prosecutors don’t know a lot about admissibility; about expert evidence. (PS25)

Some experts had met lawyers who did not know or follow the rules on the limits of the expert’s role and who asked them to overstep the boundaries. They had had to become knowledgeable about the law in order to protect themselves from being led astray.

[T] here was a case where I had spoken too much about consent and not consent. That was a whole learning thing for me. I had a young lawyer and he kept asking me about consent and I said “oh well yes, I think it’s more likely to be non-consenting.” [B]ut the whole thing was my fault: I was not so aware of that at that stage. (DS12)

However, it was clear that some experts find it very hard to navigate such situations.

[I was] squirming in my chair because I felt quite awkward answering these questions but felt that you had to answer them. (DS12)

To rebuff requests to overstep ones’ limits requires legal knowledge many experts had not initially possessed and the confidence to assert their legal knowledge against the lawyer.

[I]f other people overstep their mark, if you’re not very experienced and don’t know what you’re doing you could get caught up in that, and who’s there to tell me that that’s not true? Only because I know from experience and training [can I avoid that]. (PS22)

Resisting such questions also requires the expert to overcome his or her own training since (PA6) “we are used to trying to be helpful and we are used to trying to answer questions.”

5.1.4 Taking charge of scheduling

Some had also experimented with trying to manage the times of their appearances. They reported mixed success in this.

We tried to deal with that [lack of notice about hearing times] in Auckland by asking [the Family Court that] when the Notice goes out to the lawyers to send us the Notice. [When] they are on the back-up [list] it is very inconvenient, . . . but there’s nothing I can do to fix that. (PS23)

Sometimes they want you to drive [long distances]. [I’ve said]”no you want me; you fly me because I am not driving. I ain’t coming unless you get me there.” I think you have to [insist] at least to a certain extent and the more you do it [the better]. It’s like “well actually these are my available dates, you want me, those are the days.” Actually, it [court] is not a once a year occurrence or once in a blue moon occurrence: This is something we do all the time so if you want me these are the timeframes. I think that it’s a much easier process. It doesn’t always work but it works more times than it doesn’t. (PA2)

5.1.5 The necessity of becoming proactive

The move towards managing ones’ own evidence proactively was clearly self protective and a reaction to the isolated and vulnerable position in which experts otherwise find themselves. Several commented that if they did not take charge of briefing nothing would be done:

We see it as a necessity because if I don’t ring the lawyer I’ll never hear from them at all. (DS13)

A couple commented that it was necessary to educate oneself on the law also because the position of the expert could become extremely vulnerable. This rigorous self-sufficiency appears to reflect a mistrust of lawyers’ ability to or interest in guiding experts. They generally had no help from lawyers in learning about the law, whether about the rules of evidence or about practice and procedure in court. Some had had assistance from lawyer family members, but they had had to seek out the information privately. Similarly, when experts described initiating

improvements in the way in which their evidence is heard lawyers were absent from the picture.

I had problems in the past [having visual aids diagrams accepted by the court]. I think I tried to use a coloured diagram once and the judge didn’t want it. But what I have worked out is if I provide a diagram with the formal written statement as appendix 1 or appendix 2 then that’s much more effective but it does limit you to an A4 size piece of paper so what we tend to do then when we print out the picture, do 12 copies of the same thing and take it with us and the defence lawyer has already seen it so they just say that’s fine. (DS11)

This expert also described discovering accidentally that it was allowable to amend reports in discussions with ESR scientists.

[We were] having had discussions with ESR and we thought “oh are you allowed to do that, ok then we’ll do it too”. So it’s like there’s this sort of secret way of doing things that we have to explore and find out for yourself somehow. (DS11)

5.2 Looking Like an Expert

Another way in which experts attempt to negotiate the court process is to ensure they conform to the courts’ and jury’s perceived image of an expert witness. This reflects their belief, discussed above, that juries and judges are swayed by the appearance and demeanour of experts, regardless of their actual expertise.

First, experts, male and female, must dress for the role of expert.

[I]t’s about how you appear, how you dress, how you hold yourself. [ . . . ] [Y]ou wear appropriately sober, but smart clothes. [I]t is about looking well groomed and abut speaking reasonably well. (PS25)

You have physically got to present yourself well: You just can’t go along wearing anything. (O19)

Expert witnesses also need the ability to project confidence, although several were clear that this is often assumed, and is “a thin veneer at times”.

[T]he personal qualities [you need are], not [to]take things personally, being able to fake it until you make it I suppose: Being able to put on a game face I suppose as well. I think that’s reasonably important, I get quite nervous actually when I appear in court but I think I’ve been able to conceal that to some extent. Not to appear disingenuous but if you can convince yourself that you’re at ease then you’ll just perform better and everybody benefits. (PS21)

Calm was also an important thing to project.

[Y]ou try not to get intimidated, trying to be calm and not show any frustration if the defence is calling anything into question. (O18)

As described above, many experts believed that defence counsel deliberately set out to rattle them in order to undermine their credibility.

A few also commented that experts must project impartiality in order to gain the jury’s trust. [Y]ou need to be seen to be fair in the eyes of the jury. You’re not sort of a

hired gun as it were. I’m not saying that you deliberately give each side a

couple of points but if the defence does make a point which is reasonable I’d agree with it. (O19)

The ability to explain complex issues simply was also vital.

[B]eing able to explain medical things in very simple terms is probably number one. (DS12)

[B]asically what I am trying to do is to talk to the jury in the same way that I talk to a patient in my general practice. It’s exactly the same but I never really understood that for some years. I think this is why a lot of doctors don’t make good expert witnesses because they don’t really understand that they need to talk in language which is understood by most people. I think a lot of the DSAC doctors who are GP’s do understand [how to do] that because they do it every day. I just say to them “Look pretend that’s one of your patients, explain yourself in the same way and look at somebody and actually talk to them, and make sure they understand what you are talking about and if they don’t you have to expand a little bit.” Once you get that message across then people find it much easier. (DS11)

As discussed above, the experts were concerned that aspects of the role of expert witness, while unrelated to real expertise, have undue significance in determining whether the jury or judge would accept their evidence.

5.3 Training

Another example of experts’ acceptance that they are largely on their own when it comes to interacting with courts is the way in which some have organised training or preparation for the basic process of giving evidence for other expert witnesses.

As is described above, there is very little training available to expert witnesses dealing with child abuse and neglect in New Zealand, except for DSAC members.

Instead, in lieu of anything else, most experts described obtaining their initial preparation through informal and one-on-one discussions with concerned senior colleagues just prior to court, or, in the case of psychologists, in supervision with colleagues with court experience. In some cases, as described above, this help appears to have been relatively extensive but in other cases the help was quite perfunctory.

The main current training provider is the practitioner organisation, DSAC, who run three to four day courses several times during the year.405 These courses include, inter alia, discussions of courtroom protocol, the legal rules, ethics for witnesses and sessions in the courtroom practising answering examination questions. Those who had attended DSAC courses often commented on their helpfulness. However, this training is only available to DSAC members (for whom it is mandatory) and, more recently, to paediatricians.

All of those who discussed the matter agreed that training is extremely important to the experts’ ability to give good quality evidence and to cope with the stresses of court. One senior paediatrician observed of his junior colleagues:

People who have been on the [DSAC] course and regularly update themselves and are involved on a day-to-day basis with child protection, mostly those people find themselves in court quite comfortably. The first time you appear in court, unless you’ve had any preparation, it’s quite a daunting learning curve. I understand the first-time people going to court after a course feel that the course has been very helpful and it’s not a totally alien experience. (PA10)

5.4 Understanding the Adversarial System is Protective

Many experts noted that the development of an understanding of their ethical role and the philosophy of the adversarial system increased their ability to cope with the stresses of their involvement in the court system. This was often something they gained from training or alternatively it was the result of experience or even social contact with lawyers.

405 Personal communication with the first author and a member of the DSAC executive.

A few, often those with close relationships with lawyers, had a respect for and belief in the adversarial system which supported them in their work.

I actually have quite a lot of respect for them [defence counsel] too and I think they are doing their job and that’s how the game is played. It is valid because that’s how the system is, you know, innocent until proven guilty so [if] there are slants [they can put] on it that doesn’t actually change the facts then it’s fair game. You can try and cast aspersions on your expert and it is part of the system. If the lawyer who has asked you to be there understands what you are trying to say they should be able to remove those sorts of slants. (DS27)

A larger group found that, without accepting the adversarial system is right, embracing the forensic expert witness role not only improved the quality of their work but also enabled them to develop a protective detachment. It enabled them to draw back from the anxiety engendered by from their therapeutic concerns for their patients and their previous belief they were partly advocates for their patients.

Many found that a greater understanding of the adversarial trial system protected them from the strain of cross-examination because they understood that any attack on their competence was purely tactical.

If defence [are] trying to make it personal, I find that quite hard but I understand it’s part of what some people do as part of the court process and it has taken me a long time to get my head around that. [ . . .] [14] For me the biggest thing is understanding what the court process is about; not to take it personally. It’s actually just part of, I don’t want to say the game that gets played in court, but that’s basically what it is. (PA1)

Moreover, they also referred to the realization that their evidence is only part of case and they themselves do not bear sole responsibility for the outcome. Developing this understanding often came as a tremendous relief.

[Learning the forensic role] was a huge education for me about the whole court process, about evidence in general and I suddenly got it: It’s actually nothing to do with me, it’s to do with the lawyers trying to do their job and so if I seem as though I am being attacked it’s nothing to do with me. [ . . . ] [T]he best way to think about it because then you remove yourself from it and you recognize that he or she is trying to do a good job rather than make you look a fool. But it took me a long time to get there” [ . . .] [O]nce I understood what the purpose of it was, which I hadn’t really got my head around before, then I found it much easier. That role took away a whole lot of [other concerns], and the other stuff is just background. (DS11)

In those early days I felt very inadequate, until I learnt that I was there as a witness from what I’d found, that it was not my role to help the system, if you like, to convict someone of rape or to ensure that the rape victim was treated with respect and what have you. My role as an expert witness was quite narrow: It was there to present the information and help the court interpret that in the correct way. Prior to that it was lambs to the slaughter: Until you learnt that that was your role and it was ok to have that role, you felt inadequate if you weren’t able to be there as the patient’s advocate, and that was obviously a very wrong situation to be in as an expert witness. (DS14)

Some experts also felt they benefited from simply developing a real politic understanding of the aspects of the adversarial system for which they had little respect, especially as regards the theatricality and gamesmanship discussed in relation to cross-examination. Coming to

understand – to or accept – that these are not anomalies but simply aspects of the system, however distasteful, appeared to help some experts make peace with what was otherwise often a very troubling experience.

I used to think there was a justice system [but it’s just a] legal system really, Someone else told me it’s just a play that we play out at the end of the day: You know, justice well may not have been played but that’s the system really. (DS12)

However, as should already be clear, any such philosophic attitude was generally hard won and many continued to find the court system disturbing.

5.5 Peer Review and Peer Support

Another means of coping with court referred to be a number of experts was to ensure one has support from colleagues. This might take the form of a peer with whom to discuss the experience or also a formal peer review of the written report.

5.5.1 Peer review

A substantial minority of the experts discussed the peer review of their briefs or reports. Several commented that it is a normal and valued quality assurance tool in most medical practice, especially in medical training. The same was also said of psychology. However, it appears that at the moment the peer review of court reports is universal only amongst DSAC doctors as it is a requirement for DSAC membership. Otherwise peer review depends on the individual expert. Many described having their reports to the court peer reviewed as a regular, but not necessarily invariable, part of their work as expert witnesses. Some commented that peer review was only used where they had concerns about the case in question.

Those who discussed were universally in favour of peer review, regarding it as raising the quality and comprehensibility of their court reports.

I work very hard to make sure that my brief and my evidence are wholly accurate and reflect an understanding of the science and I always get my evidence peer reviewed without exception, and that peer review improves the quality of the evidence so when I go to court I am completely confident in the quality of the evidence I’m giving. I think peer review is very helpful to give you confidence in your evidence and complete clarity about the role of the expert witness as opposed to a witness of fact. (PA3)

They commented that peer review helped to improve the content of reports and especially academic referencing. Two also commented that peer review improved the clarity of the report’s writing.

[I]t’s not always just about the content: It’s about what you think you are putting down [compared to] what somebody who isn’t as involved in the case review gets out of it. (PA7)

Peer review is also used to standardise DSAC reports.

It was about standardisation and it also meant that you could talk to each other about your findings and you’re talking about the same thing. It was also a safety thing. It also meant that it stood up for you in court and you knew that your colleagues looked at the same thing. (DS14)

One expert, familiar with the DSAC system of peer reviewing court reports, also strongly supported the introduction of a mandatory system of peer reviews for all experts’ court reports.

[It should be] mandatory for expert witnesses to have formal training in this area and for their work to be reviewed before going anywhere. [B]ecause we can only do as much as we can from our end. But unless it’s mandated or policed from the other end it won’t work. [A mandatory peer review system] It

would go some way towards giving the jury something of value in conflicts [between experts]. (DS13)

However, several experts commented on some difficulty obtaining peer review in some medical specialities not covered by DSAC.

It’s always good to get your stuff looked at but no, for head injuries and physical abuse there’s no kind of structure to do that. People will ask for a second opinion or send it to [name of senior paediatrician] or something if they think there’s going to be something particularly controversial but there’s nothing as formal as what’s happening for sexual assault. I think it would be fantastic [if there were]. (PA7)

Similarly, people in smaller centres struggled to access peer review. One, who had commented very positively on the impact of peer review on lifting the quality of her reports, said:

[Y]ou see [my town] is a wee way away: It’s two hours from [the nearest city] and I would go to [the city], oh, two or three times a year maybe for peer review but it’s quite a trek, you know. And the case load wasn’t very high anyway: In a couple of months I would have had one or two cases, which isn’t a lot really. (DS12)

Further, it does not appear that the value of peer review is appreciated by the court. Only one commented that the fact of her having had a report peer reviewed was noted in court. Two feared being accused of or slipping into “group think” by referring to peer review.

5.5.2 Peer support

Peer support and collegial discussions were mentioned as a “really crucial” coping mechanism by a number of experts. As has already been mentioned, it is rare for experts to receive any debriefing from lawyers.

[If] you don’t talk to someone about it and you don’t figure out what you did, but also [realize] that it wasn’t anything you had control over, then I think you get yourself to the point where you get quite burnt out. (PS22)

Some, however, lacked recourse to colleagues, either because they worked in smaller communities or because there are only a very few in their specialty in New Zealand. One, discussing his desire for some feedback on his performance in court, commented:

I know [some colleagues] have sort of got their own system where they will go along and sort of peer review each other in court as part of their own quality [assurance] processes. But we are such a small group it’s actually very difficult for us to do that. (O19)

Another commented that she feels unable to avail herself of colleagues’ support because she is reluctant to discourage others, especially juniors, from appearing as witnesses.

I try not to talk about my anxieties about [court] too openly because I don’t want other people to necessarily be completely turned off. Especially [with] junior doctors: I think you should be a role model for them but [that means] sometimes you have just got to suck a lemon. (PA8)

It may be that one reform experts might consider would be to create more interdisciplinary support networks for expert witnesses.

Several experts raised the possibility of having a supporter actually in court when one is giving evidence in particularly stressful situations. One discussed a case in which, exceptionally, she, a witness, was allowed a lawyer and had found his (silent) presence extremely supportive.

[The lawyer] actually came to the court and sat next to me through the whole thing. I thought “Oh my goodness, it’s quite nice to have someone legal on my

side.” I hadn’t actually realised what a support it was until I had it because I knew what I was going to say was right but, you know, it’s quite a big performance and it was actually quite comforting to have somebody stick with me. (DS12)

Two mentioned the possibility of having a colleague attend first appearances, one saying she advised new experts to take junior doctors along for support.

I do wonder whether one of us should go along while people are giving evidence for the first time too actually, be a supportive colleague, be there to help them. Even someone sitting outside with you before you go in. (DS12)

Several other experts also commented on the comfort they derived from having spoken to other experts sitting outside court and, conversely on the scariness of sitting alone in the waiting room.406

Interestingly, it appears that ESR scientists appearing as witnesses almost invariably bring a colleague with them in support and also to peer-review their performance afterwards.407

5.6 Summary

Experts report that in order to cope with the court system it is necessary to become highly proactive and to manage their own evidence to a large extent.

More experienced experts do this by ensuring they themselves are very knowledgeable about the legal parameters of expert evidence, by managing the lawyers to ensure they are briefed and by managing the examination and cross-examination processes so that they are able to give their evidence fully. Some also try to manage the scheduling of their appearances. Some are also initiating improvements in the way in which their evidence is delivered, by introducing visual aids etc, and are managing the court’s processes in order to do so. However, they would prefer more assistance from lawyers.

They advocate for the greater use of peer review as a means of improving the quality and comprehensibility of their evidence. They also stress the need for experts to obtain proper training in courtroom skills in order to fulfil their responsibilities to the court and in order to manage their appearances better. The provision of training is another area where practitioners are providing for themselves. The main training provider in the field of child abuse and neglect and sexual assault is DSAC, who appear to provide an excellent service. However, their programmes are only available to police medical examiners and paediatricians. DSAC, notably, insists that all its members’ reports are peer reviewed before court. Otherwise, peer review is regarded as good but not necessary practice.

Developing an awareness of the adversarial system’s philosophy and of the impersonal nature of cross-examiners’ criticisms is important to experts’ emotional survival in court, and is another area where training should assist. Collegial support is also very important but can be difficult to find for experts living in smaller locales or who know few others working in the courts.

  1. Reforming the System

This section considers the experts’ responses to a number of suggested systemic reforms to the way in which the court operates, including reforms that they suggested themselves.

The reforms discussed included ways of improving the situation within the current perimeters and also possible options for systemic change to the court process.

406 See “Better Waiting Facilities” below.

407 Personal communication between the first author and Nicole Dore, senior prosecutor, Whangarei, November 2012.

6.1 Improvements to Current Court Processes

The experts suggested various improvements to the current system.

6.1.1 Better timetabling

Unsurprisingly, given the number of complaints, one of the most frequent suggestions was that lawyers and the courts improve the certainty of their timetabling and give greater consideration to experts’ schedules.

Definitely [we need to be] working together to say when is the best time for somebody who’s coming in perhaps for three quarters of an hour and that’s it. And trying to facilitate that. I went down to [court] last year and the whole thing kept getting delayed and it was about the third [time]. One time I got halfway to [court] and they called up and said it’s called off. [Then] the third time and they were running late and my evidence wasn’t going to be heard before 4pm and so the lawyer spoke to the judge and explained that I had come down for the third time and would it be alright if we just sat a bit later so I didn’t have to go back the next day. It was wonderful. It was so convenient for me and I really appreciated somebody thinking outside the square. (DS11)

6.1.2 Better briefing and increased provision of information

A number of experts would clearly welcome the provision of more information from both sides. Very obviously, given the scale of complaints, an improvement in briefing practices would be welcomed by many experts.

I would like to get warning of when trials are due and I would like a face to face meeting with the trial lawyer that you are appearing for. (PA8)

Briefing should encompass not only the opportunity to discuss the expert’s evidence before trial but also debriefing afterwards at the very least by provision of information about the verdict.

A few experts commented that they would like access to more of the evidence on cases aside from the lawyer calling them.

I’ve got no idea what the forensic scientist has come up with or are going to say; I don’t usually have or know much about the investigation, what tests have revealed. In some ways you are going into Court [and] all you know is what’s in you post mortem report. [T]hose sorts of things [witness statements and other evidence] which always help us put everything in context. (O19)

He commented that he generally received more information including witness statements when he was instructed by the defence.

I like to know how things are going, going into it. It’s very cold: It’s almost like there’s a war happening in there and they’re all part of it, and then suddenly you are interjected into it, and they’ve got ideas what they want to ask about and there’s no context for you. Ideally I’d love to get a transcript [of the case until now]. (PS22)

Overall, as one commented, expert witnesses work in “a bit of a vacuum of information.”

Experts also want better and faster disclosure from the opposing party, including a copy of the opposing expert’s report and the results of other forensic tests, for example, well in advance of trial.

It would be easier if the experts shared their reports beforehand so that you had a chance to look up things and possibly read of the literature and prepare for the topics that were going to be discussed. (PA9)

They would also like notice of any literature the party intended to discuss with them in order to be able to address counsel’s concerns properly.

I’d like it if the defence are going to actually ask for your comment on particular medical literature that you actually know that well in advance. (PA8)

6.1.3 Increased collaboration

A number of experts made recommendations which concerned the achievement of a consensus on the issues prior to court.

Some experts called for increased use of the joint report by opposing experts, saying that this would expose the issues in dispute, reducing the time wasted in recounting accepted evidence and enable a clearer presentation of the issues.

Would be really sensible even if you could then present the court with “this was the bit we agree on, and this is the bit we don’t”. Then at least we could focus on that and more easily get through the stuff we all agree on. (PA9)

A few also commented that they would like to see the lawyers reach a consensus before trial as to what the issues are.

I like the idea that the Law Reform Commission [had] about having discussions beforehand about what everybody understands and what is in dispute and what’s not. [ . . . ] [T]o be able to discuss with prosecution and defence ahead of time to get a sort of mutual understanding of what people think the issues are and just to have kind of conversations rather than an adversarial [contest] in the court situation. [T]hat’s not to say that people wouldn’t take their [obligations] and tell the truth and be impartial and all those kind of things in that informal conversation, but it’s a less threatening environment. (PA7)

A couple commented that were they, when called by the Crown, able to speak to defence counsel before trial, as they had done on rare occasions, the defence’s understanding of the evidence might improve.

[S]ometimes it might be they’ll ask me something and I’ll think “I have no idea what you’re meaning by that.” I think that’s partly [because] you don’t sit down with defence very often. (PA2)

Going beyond the achievement of consensus in particular cases, a few suggested that the Court establish or take note of any medical consensus on particular scientific issues to prevent constant repetition of the same arguments.

[F]rom an objective perspective it seems sensible to establish a consensus about what this means and not have the same arguments every single time we go along to court.” (O18)

I think there needs to be some sort of initial tribunal that actually examines the evidence and determines what the evidence actually is. I suppose that should be within the court but in some ways it may be better if it was done outside the courtroom so that it’s not subject to the same media intensity. [ . . . ] [We need] a panel that could provide a sort of consensus on which evidence is acceptable: There are a lot of nutters out there. (PA5)

6.1.4 Remote participation

The possibility of remote participation garnered a mixed reaction. This was something several had already experienced, whether personally (in and out of the court context) or by watching another expert testify remotely. Generally they welcomed the opportunity to save time in travelling and waiting at court.

[T]hat would certainly save me the two hours travelling and the angst of getting to places and being at the court and I think these days with videoing and stuff being what it was, that would probably [work]. (DS14)

However, most of those who commented expressed reservations that their evidence might have less impact on the jury.

Yes and no. It would be easier for us because we wouldn’t have to travel into town, find a park, go to court and sit around, wait half the day, come back the next day, but on the other hand you have a lot more impact and ability to explain yourself and the jury probably relate to you more if you were there. The problems with sex trials is the ingrained and un-shiftable mythologies and expectations that people have so the more present you can be [the better]. (DS13)

6.1.5 Better waiting facilities

A few experts also commented that they would like to see better waiting facilities for experts.

I don’t really want to sit out in the main thing where all the family of the accused might be.” . . . Sometimes . . you sit waiting outside the court and the family, the complainant might be sitting out there. Yeah, it’s a bit challenging. (PA8)

6.1.6 Better payment

Only a few experts commented that the pay for doctors could be improved. None suggested that pay should be increased hugely but instead that it should recompense experts for the financial losses they incur through appearing.

You need to recognise that it costs them dearly and they do not [get] recompense enough, that these people who are doing this are paying for their own training, paying their own expertise to be developed and on top of that they often pay for it by leaving their practice or leaving significant parts of their practice. We should be doing everything to make it easier for people to do this. I know they used to say we don’t want people who are doing it for a living but I don’t believe anyone who is in this work to advocate for victims etc would ever do it as their only [income], I mean you couldn’t. [J]ust [notify us of] times, places, being able to, making sure there is time to talk with colleagues etc if need be, and I think you should be well trained. (DS14)

6.2 Specialisation

A number of the reforms discussed by experts involve the increased specialisation of various actors in the trial system. The first option was that judges develop specialisations – with or without juries – in areas of expert evidence. The second was that lawyer also be trained. Also under discussion was the possibility that experts increase their specialisation, either by general training in courtroom skills or by the development of a sub-specialisation of forensic expert witness.

6.2.1 Specialist judge-alone trials

A substantial minority of the experts supported the idea of specialist fact finders in cases involving expert evidence or sex assault and child protection cases. No one stated that the status quo is acceptable and that specialisation is not required. This came against a background of the widespread concerns about both judges and juries’ ability to assess expert evidence.408

Some advocated for judges to be specially trained in the relevant areas.

408 See “Competence of Fact-finders.”

[There’s] a good model in Youth Court now [with] training [for] the specialist Youth Court judge and the Family Court judges, because they work in a specialist model and have a lot of training. Youth judges and prosecution and defence lawyers are much better trained, the judges are much better trained and you get very sophisticated, appropriate processes and judgments from those specialist courts. I think you are also seeing that with the Māori specialist Youth Courts [where] we’ve got formally trained judges. [W]hat that tells me is that when there’s opportunity to specialise, that creates opportunity for the advocates and the judges to become much better trained in the science of the area, [the] forensic science, [or, in] Family Courts [issues in] separated parents [and], offenses [of] abuse and neglect on children, for example. You get better judgments and better intervention. (PA3)

However, it was unclear whether all those who proposed a specialist judge did so as a replacement for or an adjunct to the jury. Several explicitly stated that they would like to see the jury removed.

I quite like the idea of a system where you take the jury out of it and have people who are familiar with listening to that sort of evidence. I like the “three judges” idea. Someone who is familiar with processing evidence and weighing things up and [who] is comfortable making those sorts of decisions. (DS15)

A few instead advocated for a specialist jury or training for the jury.

It’s about how expert witness evidence is more easily managed by juries. It probably means that at the beginning of a Court case that there is like a 101 of the medical issues around this condition, so that when they are getting expert witnesses’ [evidence] they have got enough background information to actually try and weigh up. (PA4)

6.2.2 Training for lawyers

Just as there was support for the idea that judges specialise in the area, some also suggested that lawyers be specially trained to assess and cross-examine expert witnesses.

If psychologists are going to continue to be an important part of court processes, then I think this would be better for lawyers and judges to have a better appreciation of what they should be asking psychologists and what they should be expecting of psychologists. [ . . . ] Some [lawyers] are a lot more expert than others I think it would be better if there was a bit more of collegial training around how to ask questions. (PS24)

The better trained the lawyers are in the design of [research] then the better they will recognise where the controversies are. Generally the crux of a case often turns on one piece of forensic science or opinion and the classic one is the issue of latent period [for] brain injury and therefore the timing of the injury. [I]f Crown and defence lawyers all understand the signs then they could ask better questions and expose our weaknesses in both sides of the argument. (PA3)

These comments about the need for training are supported by other comments (discussed above) that the quality of counsel’s work improves with experience and familiarity with the subject-matter.

6.2.3 Training expert witnesses in court-craft

The experts regarded training is one of the primary methods of reducing expert witness stress, improving the quality of their evidence and their compliance with the ethical codes, and possibly also increasing the willingness of other qualified professionals to become expert

witnesses. However, as was discussed above, there is a dearth of training for all but a few medical specialities.

One of the major recommendations by experts was that there be better provision for training, with one suggesting that training should be mandatory for expert witnesses, and another suggesting that experts be formally accredited.

I think that the most important issue is the training because without training you don’t get doctors who understand their responsibility. You don’t get doctors who have the ability to write good, sound, unbiased opinions. You don’t get doctors who have had the training to become reasonably good expert witnesses. At the moment some doctors get that training and some don’t and I think that one of the things that the Ministry of Justice or whoever should do is to actually make it mandatory for expert witnesses to have formal training in this area and for their work to be reviewed before going anywhere.[ . .

.]Because there are too many doctors out there at the moment who think they are doing the right thing by writing reports that are very much advocating for the story provided by the complainant and it’s not right. (DS13)

In discussion, the experts identified various types of training they regarded as particularly useful. These were courtroom familiarisation visits; role playing examination, especially cross- examination; advice on how to deal with cross-examination tactics; opportunities to watch other experts in court; training on the forensic/ethical role of the expert in court and advice on what to wear. The importance of training involving courtroom visits and role-play was particularly stressed:

Going down to court and physically doing that; that’s really useful. Anything [that involves] being there and standing up there and all that sort of thing, because it’s quite intimidating. We’re used to our own workplace and so going into someone else’s place and someone else’s system and you don’t know the rules and it all seems very strict and you don’t know when you should stand up or sit down and which way you should look and who to and all these little rituals like the swearing on the bible and who’s the man that holds that and what’s his role?. (PA6)

A few suggested training should take place at undergraduate level in university, although others thought this unrealistic given the population size.

Although most felt that training, while not a cure-all, would help experts to cope with court, a very few expressed doubts. One remarked that even were training in courtroom skills offered to her profession very few would want to attend:

[B]ecause, you see, they mostly are nice people. It’s only crazy people like me and [name of colleague] who actually are going to put their heads up and do this sort of work. Most psychologists, most medical practitioners will not have a bar of going to court because they want to be clinicians first and foremost and because temperamentally they are just not suited to it. (PS25)

6.2.4 Specialist forensic experts

One reform option suggested by some experts (but not anticipated by the researchers) was that expert witness duties could be delegated to a specialist forensic expert witness who would appear to give opinion evidence on the significance of other experts’ clinical findings. There is evidently an on-going debate as to whether such a specialist is feasible.

The idea was popular amongst some in smaller centres who do not appear in court regularly. They find court appearances particularly difficult and also find that it is hard to keep up their expertise in all the necessary areas when they see relatively few patients with the various conditions.

Those of us who work in the provinces are meant to try and do everything. Sometimes the level of evidence which is required is beyond that which the person is able to provide. It would be better if we could develop some other system where the hospital specialist [who saw the child] doesn’t have to be the expert [for court] and maybe [we could] even have [just] the one special one that likes to appear. (PA6)

Another, neither provincial nor a generalist, commented that he too would appreciate handing responsibility to a specialist.

It [is] an unpleasant sort of time: We are required to do as part of our jobs. I would rather not be involved in it. [I]f there was one of my colleagues who said “I’ll be the person to go along to court and present in all these cases”, I’d jump at it: It’s not something I look forward to. (O18)

It seems some hospital departments have already made informal arrangements for a few of their employees to do the bulk of court work for colleagues.

If you talk to paediatric services around the country you’ll find that most services have a roster of paediatricians who are trained and prepared to do the acute assessments, particularly the forensic work-ups. (PA10)

However, others commented that although it is difficult for some doctors to come to court to give expert evidence, it is not possible for anyone to take on the role in relation to another’s clinical work without a close working relationship.

[T]he difficult thing in New Zealand is that the population is so widely spread. I have [wondered] should we be giving [thought to], for example, what the Auckland team do, whereby they might have a more junior doctor do the examination and the expert opinion is provided by the consultant. I can see how in Auckland that works because the consultant and the registrar are working closely together. I’m not sure I would be comfortable were I asked to do it for somebody who worked [far away] and I don’t have day to day contact with them and I have no real knowledge of their experience or techniques or whatever. [T]hat’s the difficulty. I can see how advantageous that might be to the people [in remote areas]. It’s a bit of a tricky issue.” (DS11)

Another commented that while there are specialist forensic witnesses in the UK, New Zealand is too small to support such a profession. Of course, in the Family Court a number of experts already spend substantial proportions of their professional time in court work, as do a few experts in other professions.

6.3 Alternative Ways of Testifying

The experts discussed a number of alternative ways of giving their evidence not in usual practice, namely the use of court-appointed experts in the criminal trial, remote participation, pre-recording evidence and consecutive and simultaneous evidence-giving.

6.3.1 Court-appointed experts

Several experts made the suggestion that judges in the criminal courts appoint experts, as is the usual practice in the Family Court. Court-appointment was seen as a way to alleviate difficulties created by persuasive but poor expert witnesses and to avoid the court’s suspicions about the impartiality of expert witnesses generally.

Experts suggested two ways a court-appointed expert might operate. First, the court might appoint an expert in lieu of parties calling experts

Maybe [it should be] the court appointing an expert rather than an expert called from one side or the other. I think it would be much more sensible if that

court can use somebody that they didn’t think was taking sides. I think I am really responsible but I think the court thinks I am [biased]. (PA9)

Second, it was also suggested that the court might appoint an additional expert in an advisory role to assist the fact-finders to assess the parties’ expert witnesses.

[T]he other way [is] to have a panel of people who you trust and who have the confidence [and the] national and international pedigree. [ . . .] That’s where you have got to find your trusted disinterested clinical advisor who can paint that picture and say “now look. yes I saw the article and there’s this huge media interest in this hypothesis about shaken baby but at this point in time the weight of the evidence suggests that we shouldn’t leap on that particular bandwagon, we should watch it very carefully.” (PA10)

Such an expert might advise on relevant background information such as the meaning of the experts’ qualifications and the ambit of their specialisations.

It would be really good if courts could have someone they trusted to tell them, you know, who works in this kind of area, what are the specialities, like, the jobs or qualifications. Some sort of hierarchy: [We have] general paediatricians and then we have some people who have speciality training in child protection or whatever, and then a burns plastic surgeon who will know something about burns and that they are more expert in burns than general surgeons. (PA9)

Elsewhere, several other experts who operate primarily in the Family Court had commented that they prefer being court-appointed as they then feel better able to maintain their neutrality, without explicitly recommending court-appointment as a solution. Their comments, reported in the Neutrality section can be seen as implicitly supporting the extension of court-appointment to others.

6.3.2 Consecutive evidence

Some experts supported the idea that expert evidence be given consecutively. They argued consecutive presentation of expert evidence would reduce fact finders’ of confusion and memory loss during the period between hearing from the prosecution and defence witnesses.

Rather than splitting a court case up into the prosecution presents their evidence and then the defence presents their case get the experts along at the same time. Get the Crown pathologists along and then have the defence pathologist follow directly afterwards. [F]or the sake of the jury; rather than, in some situations, having two weeks between the two. At least it’s fresh in their memory rather than two weeks later trying to remember “oh, geez, what did that doctor say?” (O19)

However, even one of the supporters of the idea raised a concern that it might disrupt the coherence of the narrative presentation of the case.

[Consecutive evidence] would probably work, possibly work although it’s hard for people [to schedule and] may completely blow the flow of the case. A Court case is about a story, and if there’s an argument in the beginning that makes no sense for the jury at that point you’ve ruined it: The story doesn’t make sense. That’s the only problem I’ve got, although [it] would actually work well. It would be worth a try, definitely worth a try. (PA4)

Another also commented on the need for there to be pre-trial disclosure of reports for such a process to work:

[Y]es, as long as each expert has a view of the other’s [evidence], otherwise the second person obviously has an innate advantage, just pulling to bits everything that the first person said. (O18)

A few also suggested that the first expert to testify should have a right of reply. This implied that they would prefer simultaneous to consecutive evidence, which is discussed next.

6.3.3 Concurrent evidence

Nearly half the experts discussed the possibility of experts testifying concurrently.

A very few had already experienced concurrent-evidence giving (or “hot-tubbing”); another had colleagues who had done so. A few had experienced a similar process (not with each other) in the Family Court where experts gave evidence consecutively and the first expert had a right of reply. All of those who had participated themselves commended the process.

I felt that that process was one in which, firstly, the differences between the experts could much more readily be defined, and each expert could reasonably and easily explain to the court why they had a slightly differing view from the other, rather than each expert being brought in one after the other and the questions then being separated sometimes by several days and asked in different ways. It certainly seemed to me that the hot tubbing experience was very efficient and I suspect it was quite helpful to the court as well. (O20)

Generally, however, few had heard of the process. Those who had not heard of it previously were understandably cautious. Overall a significant minority expressed support for the idea. Some supported it because they believed a simultaneous presentation of the evidence was easier to understand:

This is for the benefit of the jury I guess so that they don’t have to dodge around and remember what the guys said 3 weeks ago. I mean I think it makes sense doesn’t it? (PA10)

Another commented on its potential to ensure all of the relevant evidence was presented:

[I]t would be more appropriate if discussion did occur consecutively, rather than being very disjointed. If if witness C said something then A could make further comments, I think that would be helpful. Because the way it’s done now, you are done and dusted and you have no way to reply to anything anyone else might say, even if you would be able to offer something useful to the Court. (PA8)

Another commented that he felt a simultaneous presentation would lessen the possibility of experts compromising their views for the sake of agreement in a joint report.

I think that’s sensible, really sensible, because when you confer with experts and you write a report, it becomes perhaps a little bit, maybe, compromised too much sometimes, but there can still be points in which the experts disagree. But it’s almost like, what is it, a camel is a horse [made by a committee]? I’ve come away thinking “oh well I really want to dig my elbow in that point but I’m willing to just agree to disagree and put that in. Hot-tubbing is an excellent way to go. (PS21)

However, both supporters and detractors alike saw potential problems. First, some raised concerns which all related to the need for the fact finders still to acquire the skills to assess relative expertise and the strength of the evidence accurately, so that they were not swayed by an extremely persuasive or dishonest expert.

My feeling is that there is just the two of you, one is saying this and one is saying the other, how do the jury discern? (DS12)

Hot-tubbing won’t work if you’ve got an expert there who’s not extremely forthright in their opinion. Their opinion will get buried. It will never be heard. (O19)

An expert who had had a successful experience hot-tubbing in the Family Court raised the related point that an uncooperative or untruthful expert could derail the process.

I think the problem would be that you aren’t always going to get psychologists who are good at finding that collegial ground. I can certainly say that [there are] some of my colleagues who would not do that. (PS24)

Similarly, another who had recently hot-tubbed and approved of the process also commented that adjustments needed to be made to avoid the expert who spoke last having an advantage.

One of the problems of the hot tub was that the order of questioning was the same and that was clearly unfair. [The one] going last [had] a huge advantage. The obvious solution is a rotating order of first, second, third so that everyone gets a shot and if there is an issue of dominance amongst the experts [it is fixed]. (O20)

A few also raised the possibility that it might increase the conflict between experts.

I wouldn’t want it [the discussion] to become [an] adversarial process between any experts up there. It would have to be tightly controlled [but] I can see advantages in that compared to our current system. (PA8)

As with consecutive evidence, a few made the point that hot tubbing would still require better disclosure of opposing reports.

I guess you’d like to know what [the opposing expert’s] opinion is and how they formed that before you present your evidence. (DS15)

6.3.4 Alternative systems of justice

Finally, some experts went beyond these suggestions and supported the replacement of the adversarial trial with an alternative system of justice, some apparently speaking just of sexual trials and some more generally. Several suggested moving to an inquisitorial system, or that a restorative justice process would be preferable to the current system of criminal trials for some sexual cases.

I know that that’s a very big discussion and there are pros and cons and I have big concerns about children’s trials. It’s very difficult for children. A year on, 18 months on, a whole lifetime has passed and how difficult that is. And I think also what is the best outcome for the child, a young person or an adult. [O]ften if you talk to people where there’s a sexual assault they say they don’t want them to go to prison they want them to know they shouldn’t do that. So other ways of dealing with crimes apart from going through the Court system is something I am quite interested in. Restorative justice, something like that. (DS11)

6.4 Summary

The participants’ discussions of options for reform underline their widespread disillusionment with the current processes. They saw the need for a wide range of multi-systemic reforms, from the processes for preparing expert witnesses; to pre-trial processes which narrow the scope of conflict; to trial processes which offer the hope of greater clarity for fact-finders, more efficiency of disposition for themselves and also more efficacious methods of assessing the evidence of all experts in a trial. They were not only adamant about the importance of greater access to quality court training but were also keen for judges and lawyers to increase their understanding of issues around expert evidence. They were inclined towards solutions which would reduce the extent to which experts are made part of the adversarial battle, such as court-appointment. Similarly, some of their reactions to options such as concurrent evidence revolved around whether it would reduce or increase rather their exposure to pressure or conflict with opposing

experts. This may be interesting in itself as a further indication of the extent to which some experts feel under siege within the court system.

  1. Conclusion

In this chapter we discuss the responses of 27 expert witnesses, appearing mainly in the criminal courts but also in the Family Court. They see serious issues with the current situation across the board. While universally highly conscious of their ethical responsibilities to the court as expert witnesses, they raise questions about the level of understanding amongst some of their counterparts, and about the competence of the fact-finders (judge and jury) to assess expert evidence, especially where there is conflict between two or more experts. They find the court a difficult and stressful environment, and question the effectiveness of current processes for taking and testing expert evidence. They believe many of their colleagues avoid any engagement with the courts. Finally, they would welcome reform of the system, and especially the greater provision of training in courtroom skills and ethics for witnesses and measures to improve the timeliness of the system, and the comprehension and the comprehensibility of their evidence.


Chapter Four: Interviews with Lawyers


  1. Introduction

This section discusses the opinions of a small group of lawyers about expert witnesses. These interviews were conducted in order to, first, provide some balance for the expert witness interviews and to check their reports of practice and second to seek explanations for various practices and third, to explore the legal community’s possible reactions to various reform options.

  1. Responses

It is clear from the responses of the lawyers that they see real issues with the way in which expert evidence is handled and would welcome reform of this area.

2.1 Problems with Experts

The lawyers discussed two broad problems with expert evidence: the first was bias and the second was reluctance to attend. While there were very isolated anecdotes about incompetent experts, it appears generally the lawyers feel experts they encounter are competent professionals.

2.1.1 Bias

The experts singled out a small group of prominent and charismatic defence experts they saw as pushing the boundaries of what is appropriate.

Several, but not all, of the lawyers commented on the risk of bias amongst experts. One, for example, was critical of New Zealand experts’ reluctance to criticise each other, while two – one a prosecutor, one with extensive prosecutorial experience – raised concerns about bias amongst a small but prominent group of defence experts.

One raised questions about the ethics of retired experts, because he believed they are then untouchable by peer review409 and of highly opinionated and unscrupulous “super-charismatic” experts who influence juries by their presentation. Such experts are “incredibly difficult to deal with” in cross-examination.

Another stressed that while generally Crown experts “don’t care what they say” to whom, and tend to be conservative and careful, a small but prominent group of defence experts “need to be more careful: They are dishonest.” This small group are prone to “twist what they say” and go outside their expertise. They do not understand their ethical responsibilities, are egotistical and “give evidence for the defence”, seeing their role as “advocating for the defence, however off- centre [the defence] stance is.” Others “are more like activists”, and just as dangerous.

One defence lawyer commented that the onus is partly on experts to tell the legal system that certain others are not respected, suggesting that this would reduce reliance on unreliable experts.

2.1.2 Reluctance to participate

There was general agreement that some, but not all, experts are reluctant to participate in trials.

One commented that experts are “scared about their own liability, scared of being made a fool of, scared of participating in a system that doesn’t strike them as rational.” He believed the key was proper training and preparation.

409 Although in fact registered but retired psychologists at least remain open to disciplinary action.

The lawyers suggested as reasons for that reluctance the extensive demands on the experts’ time, fear of challenges to their competence and of making a mistake, especially when another expert might be reviewing them, and fear when they do not know what the challenges will be.

One commented “They treat it like an exam.” He commented that “my job” as a senior prosecutor was “corralling reluctant witnesses.”

Most acknowledged the inconvenience and financial cost and were sympathetic to experts but a few were more critical, saying they regarded testifying as the experts’ civic duty and a recompense for their powerful and well-paid positions in society.

Another commented that New Zealand experts are a closed shop and that they can be very reluctant to appear for the defence critiquing their colleagues, so that he has been forced to seek witnesses abroad.

2.2 Competence to Assess Expert Evidence

The next section concerns lawyers’ opinions of the level of understanding of expert evidence amongst the jury, the judges and themselves. As was said of the experts’ comments about jury competence in Chapter Three, the lawyers’ comments are based solely on their observations of the jury during trials and their knowledge of jury verdicts. Lawyers in New Zealand should not discuss trials with jury members. Thus, while the lawyers have far greater opportunities to observe juries than do experts, their observations are still not strong proof that juries have experienced difficulty with expert evidence. However, lawyers generally have multiple opportunities to gauge judges’ level of understanding of expert evidence, including in pre-trial and chambers discussions. Their observations in this respect may be quite valuable.

2.2.1 Jury competence

Many experts had raised concerns about the jury’s competence (see previous chapter), and the lawyers were in agreement that juries often struggle with expert evidence. Several lawyers commented that they themselves struggled to understand some expert evidence and felt juries were likely to have considerably greater difficulty.

For example, [in] the last one [we did] where they had days and days of experts and the jury were lay persons. I wouldn’t know [what the evidence meant]: Here I am, relatively educated, but I see [that] a juror, on medical stuff, wouldn’t have a clue. I wouldn’t even know what the terminology was and yet we expect them to listen to this first impression as they are hearing it, as they are meant to be absorbing and digesting the [evidence]. And [then] it’s gone: They can’t even rewind like they could on the internet or whatever. It’s ludicrous really, this [relying on] first impression stuff.

Several commented that the jury’s comprehension is dependent upon the lawyers’ ability to explain what the expert has said.

Probably about 60% wouldn’t understand at all, and would only understand once I have summarised or “dumb-arised” it for them, or if the judge would. You’d be a fool not to discuss expert witness evidence in your closing because it might not be said but we all feel they don’t understand.

There was a strong call for there to be more assistance for the jury. Several criticised the way in which the trial process forces juries to rely solely on oral accounts and emphasised the need to provide written material to the jury to aid their comprehension, whether that be the experts’ statements, their joint report or counsels’ agreed statement of facts or a better summary from the judge. A defence counsel said:

And [we should be] giving them the material they need, providing it’s properly evidentially screened like any other material that goes before them. It just

makes sense to me. I think the experts will buy into that because it’s the way they operate. They must find it very strange, the way the common law operates.

However, most still believed that the jury system is worthwhile and were reluctant to dispense with it.

One issue which is closely related to the juries’ competence is the weight that peripheral factors have in their deliberations. The experts were often convinced that the way in which they appear and present themselves in court was crucial to the acceptance of their evidence. They were clear that such factors are irrelevant to professional expertise.

Several lawyers also highlighted the importance of expert witnesses’ presentation skills. Typically, one described a “good expert” as one who is a “nice lady, comes along well-dressed, articulate, very well-educated, very clinically experienced.” Another, describing a well-known expert, said:

[Name] is a good expert, for example. He speaks well in court, doesn’t he? [H]e looks the part, he’s well groomed, he speaks nicely and is authoritative and all that sort of stuff; you know. That’s what a good expert is, and of course he’s got the pedigree.

All acknowledged that these presentational skills were separate from substantive expertise. [I]f you are in an adversarial situation and you’re live and the jury are summing

you up on your live performance, a good oral expert must know [their] stuff but

also must be able to play test match rugby. Because if they can’t they will be eaten up. [There’s one expert I know] who is outstanding in this [office] room but in court, [he] became very hesitant and almost bumbly and wasn’t a good speaker. [He] wasn’t perhaps quick minded. I’m not saying “not a good mind”, but some people are quick minded; others like to reflect and consider and think: You don’t get that chance in court.

In a parallel comment, another said that experts often cope with stress in cross-examination by becoming angry or sarcastic and that this undermined their evidence.

2.2.2 Lawyers’ and judges’ competence

The lawyers frequently admitted, as is clear from the comments on jury competence that they too struggle to understand some expert evidence. Their understanding improved when the material was very familiar from previous cases or with close study.

I get it nine times out of 10. Sometimes I’m really confused. Only once I haven’t understood it at all: DNA evidence: So confusing even after multiple phone calls to one of the clearest ESR experts.

Very few had anything to say about judicial competence, other than that it varies and to suggest judicial understanding will parallel lawyers’ understanding. One added that one of the advantages of an experts’ joint report is that it is “something for judges to hold onto” if they were struggling to understand the evidence.

2.3. Aspects of Legal Practice

This next section covers lawyers’ comments about a range of issues to do with current legal practices.

2.3.1 Briefing

Lack of briefing was a major issue for the experts. They said that prosecution counsel frequently gave them no more than “10 minutes at the courtroom door”, although the time made available expanded in a very serious or high-profile case, while defence counsel give considerably more time. The experts were concerned about a lack of briefing because they saw it as an important opportunity to educate lawyers about their evidence and ensure it was led correctly.

Of the lawyers, the less senior prosecutors (i.e., the three with between 10 and 12 years’ experience) agreed the experts’ descriptions of briefing times are accurate for some or most of their cases, where the evidence was straightforward. All three commented that a serious or high-profile case was given more attention. One commented that she would meet a DSAC doctor with no findings of injury, “for maybe 10 minutes beforehand” but where the DSAC evidence was complex it varied “between two to three hours and “meet you on the day””. Another commented that this pattern is due to the financial constraints on prosecutors handling ordinary cases alone where only 10 hours is allowed for preparation of every aspect of the entire case, as opposed to less-common high-profile cases which involve well-resourced teams of prosecutors. In an ordinary case “if you are lucky they are there [in court] at 9.30am and you might get 10 minutes with them before court,” a pattern which is “much more unsatisfactory but much more likely.”

Another commented that it is only possible to discuss the evidence with the expert in the week before trial because the pressures of their workloads mean that that will often be the first opportunity the prosecutor has had to read the evidence. These comments reflect those of several experts who had said that they believed the prosecutors’ paucity of briefing was due to their workloads.

One of the less senior lawyers said strongly that briefing should be longer and should be used to educate the expert on court-craft. The other two indicated they had not previously considered their practice insufficient. Interestingly, both of the latter said that knowing that experts were critical of a lack of briefing they would try to increase the amount of time they spend – one later emailing the interviewer to report that she had changed her practice in her next trial.

Conversely, the most senior prosecutor, whose case-load tends to consist of the most serious charges, commented that he always spends considerable time with experts, including meeting several times and attending at their offices. The defence counsel also said that they always discuss matters with experts for considerable periods and well in advance of trial. One issue raised in the literature discussed in Chapter One is that defence counsel on legal aid may have a poorer opportunity to instruct and spend time with experts, thus disadvantaging their ability to mount a challenge to inadmissible expert evidence. One defence counsel commented explicitly that while private fee-paying clients can sometimes afford better experts, he had never felt disadvantaged in his ability to hire and discuss matters with experts as compared to the Crown when on legal aid.

Two prosecutors said they strongly believe experts need better training in court craft and that they make sure they offer that assistance in briefing. However, the others seemed almost entirely unaware that many experts might have any issues in this respect. They commented that almost all the experts they see are experienced and that they consider that the experts should therefore know what they are doing in court. These counsel commented that they expect experts to ask if they are uncertain “but they never do”.

I never discuss protocol: I assume they know. I presume because they are experts. People like DSAC doctors, I expect them to know. Not necessarily a surgeon, but certainly a DSAC doctor. To me that is part of their professional responsibilities: To know court protocol or at least I expect them to ask. But even a paediatrician at the hospital, I wouldn’t help them out like [I would] a 25 year old nervous victim. Having said that, I’d expect them to be more eloquent and say “Oi, tell me what’s going on.

Only one suggested that some experts will be too nervous to volunteer the information. Only two prosecutors discussed what information they give experts about what has happened in the trial prior to their arrival, both saying they rarely discuss much:

Sometimes they need [to know] where they fit in trial. Other times they don’t need it and I don’t have time.

2.3.2 Cross-examination

Very few commented specifically about cross-examination techniques, although several noted that the prospect of “challenge”, meaning by cross-examination or by opposing expert, is a major contributor to some experts’ reluctance to appear. One said that in his experience as a prosecutor experts are not usually confused in cross-examination and will often distinguish between bundled questions, and deliberately answer one question at a time. But that they can fall for the tactic of “separating related issues out” (e.g., the tactic of funnelling described in Chapter Three, where the expert is invited to answer a series of apparently straight forward and unrelated questions that lead to an unpalatable conclusion ), and are “generally not able to deal with the divide and rule approach.” However, he felt funnelling was still not a big issue, or at least that it can be sorted out on re-examination. Restrictive yes or no questions are “often or sometimes” used, but this prosecutor said he will usually object to them. He also noted that the manner employed by some cross-examiners can be insulting.

2.3.3 Debriefing

Only one lawyer regularly debriefed expert witnesses. None had ever had an expert ask for a transcript of their testimony. One commented that ESR scientists usually request a discussion about the case. Asked how often she debriefed experts, one said:

Never, unless they ring and then I’m like “why do you care?” ESR will generally debrief but then it’s a general discussion not a debrief. Usually I’m so mad with them that I don’t want to talk to them.

Time was a real issue. Counsel do not have time to debrief the expert during the trial and many said they had neither time nor inclination to do so at a later date. As one said, with regret, experts “get forgotten.”

2.3.4 Disclosure

The new disclosure regime was accepted and applauded. As can be seen in the discussion of joint reports and pre-trial discussions, in fact almost every lawyer now wants greater pre-trial disclosure.

2.3.5 Reads

The practice of having a statement to be read (by a court official) by consent, so that the witnesses was not required to attend was identified by several lawyers as a way for the defence to minimise the notice taken of that evidence by the jury.

As one senior prosecutor commented defence counsel prefer reads:

because he’s tried cross-examining and knows he doesn’t get anywhere so he would prefer to neutralise the evidence and not to call them whereas we prefer to call them.

Similarly, a senior defence counsel commented:

I wanted to just distance it. So, the more I cross-examined the more you give [the witness a] platform: She says it once; I ask “oh those are not glasses?” and she says “Yes, Mr [X], blah blah” and then she is re-examined. So you get it three times. So why give them the chance to hear it three times when they can hear it once?

Moreover, some suggested that having an experts’ statement read made it harder for the jury to understand:

Often I said they could read it, for obvious reasons, [being] to dilute it. The jury sit there and they read this stuff and think what the hell’s all this about? Good design.

2.3.6 Scheduling

Several discussed scheduling issues and delays for experts. They said that they endeavour to accommodate experts who give specific dates and that they also try hard to ensure experts are called promptly and at a convenient time. One disagreed delays or rescheduling were very common, while another agreed they are common but cautioned that the vagaries of a trial are impossible to predict or control, so that experts cannot always be accommodated. Trials are “hard to predict and go wildly wrong.” He went on to describe a case in which an overseas expert was flown in and kept waiting for several days before being sent home unheard.

2.4 Reform Options

The final section discusses the lawyers’ reactions to various options for reforming expert evidence and their own suggestions for reform.

2.4.1 Court-appointed experts

A few discussed the possibility of court-appointed experts in criminal trials. One felt that introducing the practice would reduce the bias he felt accrues almost unavoidably in experts who are partisan appointments, even though all experts should consider themselves the court’s witness, since “all human beings are tribal” and inclined to want to conform to their group’s culture. However, he feared that in areas where there is genuine controversy a single expert might not be able to represent the state of scientific opinion impartially. This same lawyer was the only person to discuss court-appointed assessors.410 He found that idea “troubling” for the same reason: That where there was controversy a single expert might be unable to present the situation impartially. Another suggested the criminal courts might appoint experts as in the Family Court, in lieu of removing the jury, but he was concerned about the cost. A few lawyers overall were concerned that sometimes a minority opinion is in fact correct and they cautioned against privileging the majority view or using it as a yardstick to define admissibility.

2.4.2 Increased pre-trial decision-making

There was general agreement that increasing pre-trial decision-making would be advantageous, or, in the words of one senior defence counsel “safer and cheaper”.

It was suggested that greater pre-trial consultation, by narrowing the issues before trial, would result in shorter trials and cost savings, as the lawyers believed there would often be significant consensus between experts. The evidence presented to the jury would then be clearer. It was also suggested that greater disclosure and consultation would reduce experts’ anxieties about appearing in a vacuum.

Obviously it will lead to economy of trial for a start. It could lead to enticing more experts in, because they know they are not going to be humiliated in public, taken by surprise.

It was suggested several times that the judiciary should take more initiative in ordering pre-trial discussions between counsel and consultation between experts, including ordering joint memoranda.

2.4.3 Joint report

One possible part of the pre-trial process is consultation between experts and the production of joint reports.

Four of the lawyers – including both defence counsel – argued strongly for the increased use of joint reports by opposing experts in criminal trials. They said that judges should be more proactive in requiring experts to meet and produce reports. They felt joint reports would reduce the length and therefore cost of expert evidence, and lead to increased understanding amongst

410 The concept of an additional expert sitting with a judge in a quasi-judicial capacity to advise and help to decide the expert evidence: discussed in Chapter One and Chapter Three..

fact finders. As already discussed, they said that joint reports or an agreed statement by counsel or even a statement from the judge reflecting the content of the report should generally be released to the jury to aid their comprehension.

A high quality joint report would increase quality of justice quite a bit. It would assist understanding and would reduce time in trial because we could almost then read an agreed statement and then the experts would testify only on issues. The statement could form part of opening and go to the jury.

Two however did raise questions about experts’ meetings. One suggested a court-appointed facilitator can ensure that tensions between two experts do not derail the meeting. This suggestion might also resolve the other lawyers’ concern that in such a meeting a stronger personality might overwhelm a weaker.

One defence counsel also commented that he did not know whether Schedule Four, which requires consultation between experts, applied to criminal trials, and had not heard that it did.

2.4.4 Concurrent evidence

Experts’ opinions of concurrent evidence were divided between those who applauded the idea and those who had concerns, particularly that a dominant personality might overshadow the other experts. However, the lawyers were much more positive. Those who commented on consecutive evidence saw it as far less useful.

They immediately saw benefits in improving the jury’s comprehension of the evidence.

[I]t is difficult enough to ask a jury to understand one expert, but then to ask them to listen to 16 witnesses and then listen to another opposing expert and remember what the first one said [is incredibly hard]. Because I can’t remind juries what my expert said and doing it in closing is totally inadequate.

They also saw advantages in narrowing the scope of the dispute and reducing the time spent in examination, thus reducing costs and revealing consensus. Some also said that concurrent evidence reduces difficulties with over-confident witnesses as their peers can offer an immediate rebuke, and that just the peers’ presence can restrain any tendency to over-state matters. Concurrent evidence “tames out of control witnesses” because it is “effectively an immediate peer review.” Another commented, having witnessed a hot-tub, that “particularly where you have one doctor who is likely to go out on a limb it is interesting how they are restrained by the presence of three of their peers.” Moreover, they said that the narrow focus on the issues in dispute reduces opportunities for super-charismatic witnesses to deploy their charms in lengthy exposition.

Several commented that there is no question of the defence being forced to reveal their hand since disclosure is already required. One defence counsel commented:

I don’t personally see the difficulty if the jury hear that [expert evidence] together. What’s the problem? Because you know what the issues are: Nothing [new] is going to come out. It’s different with factual witnesses, we all know: [In] hundreds of trials they say on a piece of paper it was Tuesday and then they get up and say it’s Thursday. [B]ut with experts, they are professionals, they are committed to the code, they are committed to it as a worthy officer of the Court almost.

One commented, however, that other lawyers might be reluctant to relinquish the narrative spotlight. “[name of prosecutor]’s objection would be “my witness; my case: I don’t want that person anywhere near my case.””

Two less senior prosecutors also made the point that they rarely see opposing experts called, and so have limited opportunities to hot-tub.

2.4.4 Judge-alone trials

Family Court hearings are of course always judge-alone. The lawyers were not generally in favour of the idea of a judge-alone criminal trials. They saw particular importance in the jury as a means of involving lay people in the legal system, although one commented that this could be achieved by lay representation on a judge-led panel, as in many continental European states.

2.4.5 Remote participation

Only one discussed remote participation, but did so with enthusiasm.

2.4.6 Specialist judges

Only a few lawyers discussed specialisation amongst the judiciary, all advocating that it happen. One commented “how can you not say it’s a sensible use of resources?” while cautioning that in child abuse cases judges would need to be rotated to ensure they did not become jaundiced. Another commented he believed specialised judges would be helpful; “because so many don’t have a clue about children or rules of evidence that we are wasting our time.” He went on to say that non-specialist judges often do not know enough to stop the defence leading unreliable expert evidence even if it is “way weird” because it might be “unfair to the defence”.

2.4.7 Training expert witnesses for court

Nearly all the lawyers discussed training experts, half seeing a strong need for more training. They identified the same areas for training as had been identified by experts themselves. A few commented that they assume experts understand the courtroom and that it as the experts’ responsibility to ensure they do.

  1. Conclusion

It is suggested that, although this sample is not large, a number of interesting conclusions do emerge from this group of interviews. What is clear, first, is that the interviews give considerable support to some of the experts’ key concerns about the court process and second, that lawyers are far more prepared to implement far-reaching reforms than might be expected.

First, while there is some concern with bias amongst experts, and especially a small group of defence experts, there is not a great deal of concern over experts’ competence overall.

Second, there is however an acknowledgment that many experts dislike the court process, and some awareness of where the issues lie, although only a few were conscious that experts might not have sufficient understanding of the court process and need help to feel confident.

Third, and perhaps most importantly, there is a strong belief that many juries struggle to comprehend expert evidence. They described this as a kind of open secret amongst lawyers. As an aspect of this, lawyers concur with the experts’ perception that an expert’s charisma and skill as a presenter has a considerable impact on the jury. They also acknowledge they themselves sometimes struggle to understand the evidence and that some judges may also have difficulties.

In terms of the experts’ comments about the court process itself, the lawyers understood that challenge by cross-examination and opposing expert were two major fears of the experts, but generally did not discuss cross-examination.

There is also evidence supporting experts’ complaints about the lack of prosecution briefing in the bulk of ordinary cases, although at the more serious end and in defence hands briefing appears to be more adequate. At the other end of the trial, the responses suggest that debriefing is almost non-existent.

When it came to the discussion of ways to improve the process, the lawyers were all clear that reform is important and all were remarkably open to the implementation of quite radical measures.

There were widespread calls for greater use of pre-trial time to determine the admissibility and extent of expert evidence. They were strongly in favour of greater consultation between experts to narrow the issues and the production of a joint report. There were equally frequent calls for judges to take the initiative and ensure all such pre-trial discussions take place. They saw cost savings and improved understanding as the benefits accruing here.

The lawyers also strongly asserted that juries should be given access to written materials to aid their comprehension, including any joint report or an agreed summation thereof, whether delivered by counsel or the judge. They were, however, not generally in favour of judge-alone trials, although specialisation amongst judges did get some support.

Concurrent evidence was enthusiastically endorsed by all those who discussed it, for reasons of cost and increased comprehension. They were clear that there is no legitimate complaint to be made that concurrent evidence or greater pre-trial consultation might force the defence to reveal material since the current disclosure regime, which they thoroughly approved, renders this concern obsolete.

Limitations

This is such a small sample that it cannot be regarded as representative, of course, but the comments may be indicative, especially given the seniority of those interviewed. However, the fact that the sample contained mainly criminal court lawyers limits its relevance to the Family Court. Further research into lawyers’ experiences and opinions, especially in the Family Court, might be useful.

Potentially there were issues arising from the fact that the interviewer was known to the interviewees and in particular that they were aware of the interviewer’s published criticisms of criminal court practice in relation to vulnerable (not expert) witnesses, and may also have been aware of the views of both authors in this connection. It is possible that their knowledge might have distorted their responses, and in particular that they might have modified their views where they thought their view was in conflict with those of the authors. However, the lawyers were all senior to the interviewer as practitioners, and highly confident professional people. The interview responses demonstrated that this approach was justified: The responses were very open and frank and quite frequently at variance to what the interviewees knew of the interviewer’s views.

Chapter Five: Discussion and Recommendations


  1. Introduction

This is a study the treatment of expert evidence in the Family Court and the criminal courts, the latter garnering the greater share of the discussion. We interviewed 27 expert witnesses in the field of child abuse and neglect, and their responses were then put to a much smaller group of experienced lawyers. The majority of both experts and lawyers appear mainly in the criminal court, while a minority were mainly Family Court practitioners. A few appeared regularly in both arenas. The conclusions here are intended to relate to both courts. We have tried to distinguish between them when necessary.

This concluding chapter also includes references to discussions with five District Court Judges regarding the findings in chapter three and our draft recommendations.411 Their comments should not be taken as representing the views of the District Court judiciary, and nor should any of our observations or conclusions be taken as having been endorsed by the judges to whom we spoke. Their comments are included because we believe that they elucidate many of the issues raised.

  1. The Literature Review

This report began by examining the concerns expressed in the literature about the courts’ treatment of expert evidence and the options which have been suggested for reform.

2.1 Problems

Underlying all of the specific criticisms raised by the various critics is a strong concern with the quality of the expert evidence allowed into the courts. The concern encompasses criticisms both of the reliability of the evidence itself and also of the ability of the system to assess that evidence accurately.

There are long-standing concerns that some expert witnesses may be biased, that they may overstate the strength of their evidence or may be incompetent. In the US and England and Wales the risks of unreliable expert evidence have been underlined recently by the revelation of a series of wrongful convictions based on flawed expert evidence. In the US the advent of DNA testing has revealed a large number of wrongful convictions, a significant proportion of which were made in reliance on bad expert evidence. In England and Wales the Court of Appeal has overturned convictions in several high-profile cases where mothers were convicted of killing infants based, again, largely upon flawed expert evidence.

If expert evidence is potentially flawed, then the spotlight must fall not only on the experts but also on those whose job it is to evaluate that evidence. Considerable attention has been paid to the ability of juries and of judges to assess experts and their evidence.

In relation to juries within the criminal courts, empirical research, while not without its own limitations, suggests that juries of lay people are frequently poorly equipped to understand and evaluate expert evidence. They have difficulty with complex technical information and tend not to understand concepts of statistical probability. Many jurors in fact struggle to follow the evidence and legal rules in ordinary trials. Further, jurors have also been found to rely upon irrelevant or less relevant factors in assessing expert evidence, such as the personal

411 These discussions took place with the consent of the Chief District Court Judge, Her Honour Judge Doogue.

characteristics of the expert. They have also been found to be rather suspicious of expert witnesses, tending to see them as biased or as hired guns.

It is often assumed by commentators that if juries have difficulties, judges can assist by winnowing out unreliable evidence at the pre-trial stage. However, research also suggests that judges are almost as poor at evaluating expert evidence as jurors. Not only do they not understand relevant concepts or how to assess expert evidence but they share jurors’ reliance on irrelevant factors to judge the evidence. They too tend to be very suspicious of some potential reasons for bias, whilst remaining oblivious to others. Moreover, the other traditional safeguards on which the courts rely to alert fact-finders to issues with expert evidence - namely challenge by cross-examination, by the marshalling of opposing experts to critique the evidence and also the use of judicial directions to guide juries - all also turn out to be problematic.

The research also suggests that lawyers, on whom the courts rely to challenge the admissibility of expert evidence, also have difficulty assessing expert evidence. Where they are underfunded they are less likely to mount any challenge.

Even where expert evidence is disputed, cross-examination has been found to have little or no effect on juries’ opinions of expert witnesses unless the expert makes serious concessions. Even the presence of another expert supporting the cross-examiner is unlikely to change the jury’s assessment of the first expert. Research also suggests that conflict between two experts will sometimes cause jurors to simply ignore all of the expert evidence and to fall back on their prior assumptions.

Finally, empirical research suggests that reliance on judicial directions to warn juries against some errors in reasoning is misplaced, since jurors often struggle to understand their meaning and significance.

All of the forgoing are problems legal scholars and practitioners see with expert evidence and with the ability of the actors in the legal system to apprehend problematic expert evidence. However, commentators and expert witnesses have also identified areas in which the legal system and its actors themselves distort expert evidence or the picture of it made available to the fact-finders.

First, they criticise cross-examination as a means of testing expert evidence, arguing that the questioning strategies employed by lawyers are often obstructive and misleading, misrepresenting the actual views of the expert. These criticisms are surprisingly similar to those made in relation to the cross-examination of vulnerable witnesses, especially of children. Considerable empirical research has led to the conclusion that conventional cross-examination is not a suitable means of testing children’s evidence.

Experts also complain of the stressfulness of their involvement in court proceedings, due not only to cross-examination but also to the length of time and multiple delays incurred. Again, there is a strong body of evidence that many of the same aspects of the court process are very stressful for children and vulnerable witnesses and that that stress decreases the accuracy and completeness of their evidence.

Finally, commentators and experts criticise the divisiveness of the adversarial process used in the courts, and the way it polarises the evidence. They say that, first, the dialectic presentation of any issue can create the appearance of widespread controversy and disguise the actual state of scientific opinion; and that, second, counsel are also likely to select experts who are at more extreme ends of any continuum of opinion, thus presenting an unbalanced picture of the relevant scientific facts. They also say that the very process of partisan selection and the pressure (subtle or overt) counsel often apply to experts to render opinions useful to their argument, can cause experts to indeed render biased evidence. Aggressively partisan cross- examination can exacerbate biases, pushing experts to make rash and extreme statements they would not otherwise support. Partisanship may also imperil any attempts to have experts

cooperate to narrow the issues before the court, since not only experts but especially counsel may be unwilling to allow any collaboration.

Thus, while the literature does not identify the extent of the problems or whether they apply to all jurisdictions, it does raise the possibility that the court system is doubly unfit to make use of expert evidence: First, its actors may not be equipped to understand the evidence and second the system itself may distort the evidence.

2.2 Reform Options

Options for reform suggested in the literature can be seen as falling into two broad groups, although there is considerable overlap between them. First, there are measures designed to improve the ability of judges, jurors and lawyers to assess expert evidence. Some suggest increasing the threshold test for the admission of expert evidence. Some seek to improve the fact-finders’ and the lawyers’ ability to comprehend and evaluate the evidence by training. Others instead seek to enlist the expert community to help evaluate expert evidence, suggesting the establishment of a variety of out-of-court advisory bodies and the use of court-appointed experts or assessors. Still others are concerned to improve the systems by which the court receives expert evidence, seeking to create methods such as concurrent evidence, which are easier to understand and which reduce the potential for misunderstanding inherent in conventional methods of evidence-giving. There are also suggestions to limit trials involving expert evidence to judges alone, removing the somewhat fragile jury.

The second group of suggested reforms ignore the frailties of the court system in favour of improving expert witnesses. These are measures aimed at improving expert witnesses’ grasp of their ethical obligations and performance of their role as experts, from the quality of their substantive evidence to the improvement of their court-room presentation skills. Suggested reforms include that all expert witnesses be accredited, that all reports be peer reviewed, that professional bodies have as part of their professional code of ethics a section on the responsibilities of expert witnesses and that the courts also impose codes of ethics on experts. If experts fail to meet their responsibilities, it is suggested that they be liable to both professional disciplinary sanctions and to civil actions.

None of these options is suggested as a panacea. Generally commentators suggest that a combination of measures is required.

  1. The Findings

There is considerable similarity between the concerns expressed by commentators in the literature review and those of the experts and lawyers to whom we spoke.

The main finding is that expert witnesses are not satisfied with the courts’ approach either to their evidence or to themselves, and that they would welcome the reform of the current process.

We suggest that this is all the more significant because each of the experts who contributed to this report could very much be characterised as “successful” expert witnesses. All are well- regarded by the courts, and almost all continue to appear when requested. They could not be characterised as speaking out of resentment or bitterness because they have been, rightly or wrongly, criticised by the courts.

It should also be pointed out that all of our interviewees were given the opportunity to comment on the draft of the chapter analysing their interviews and not one took issue with our interpretation. Those who chose to comment remarked that the chapter reflected their reality.

3.1 Quality and Neutrality

Turning first to the central question of the quality of expert evidence coming before the courts and the incidence of bias amongst expert witnesses, all of our interviewees appeared keenly aware of their ethical responsibilities.

When we discussed with the experts their beliefs about their own role in either the criminal or Family Court jurisdiction we found that all were very clear that even where they are called by parties they appear as the courts’ witness and remain impartial. They knew to separate themselves from any emotional ties to patients or clients and many, DSAC doctors in particular, emphasised the need to adopt a forensic as opposed to a clinical role as expert witness. Contrary to the beliefs amongst some sectors of the legal profession, almost all the experts were quite prepared to appear for the defence.

However a few expressed concerns that the system of partisan appointments exerts subtle pressure on experts to join the team, and a very few expressed concerns about more overt kinds of pressure exerted by some defence counsel (but not by prosecutors). These findings echo fears expressed by some commentators and overseas experts, as described in the literature review. As a result of these concerns, several experts in the Family Court commented that they prefer to be court-appointed, as court-appointees are not subject to the same pressure. Others in the criminal court welcomed opportunities to work for both prosecution and defence expressly in order to guard against developing an unconscious, habitual bias. Further, a number of experts expressed support for various reform options which have the effect of distancing the expert from the fray, including the idea that experts appearing in the criminal court might be court- appointed as they are in the Family Court, or that experts might collaborate more across party lines.

Experts often expressed serious concerns about the quality of some others coming before the courts. While some experts are merely inept and unclear in their reports, others are insufficiently aware of their ethical boundaries and overstep their expertise. Our interviewees also identified a small number of “hired guns” or activist expert witnesses, some local but several from overseas, who appear regularly in the courts (especially for the defence) and whom they believe are seriously unethical in the way they represent the scientific issues to the court. They were concerned that many of these people testify for years before the court recognises their unreliability, although their reputation is well-known to the professional community. Some of the lawyers agreed with this analysis – especially the prosecutors. Others claimed that New Zealand experts are reluctant to break with majority opinion amongst their colleagues, so that they are forced to source experts overseas.

The judges to whom we spoke agreed that they generally have no issue with the impartiality of those appearing before them, although they did comment that they knew there were “hired guns” about and that some appear to also have loyalties to their patients/clients. However the judges also said that they are not themselves equipped to evaluate the experts’ actual competence: Unless a challenge is mounted and cogent reasons given they tend to accept expertise without question. They found issues such as the minutiae of academic literature and the methodology of tests etc used by experts difficult to assess. In an extreme and obvious case they said they might step in on the basis of the reliability of the evidence.412

3.2 Reluctance

The interviews also examined the experts’ willingness to attend court at all, exploring persistent reports in the literature and also anecdotal reports to the authors that many are very reluctant to appear. The experts asserted that the majority of their colleagues are highly reluctant to appear as expert witnesses, a phenomenon they ascribed largely to fear of the aggressive and combative nature of the trial.

The experts we interviewed, although almost all remain prepared to attend court, would prefer not to have to do so. They generally described court as a stressful and unpleasant experience, the efficacy of which as an investigative method they doubted. Even those experts in the small group of witnesses who said that they can enjoy aspects – but not all – of the cut and thrust of cross-examination find that it can be unpleasantly stressful. This group, which largely consisted

412 Section 7 Evidence Act 2006.

of witnesses who attend court very regularly, also included several who have chosen to be on the Family Court register of expert witnesses for court-appointment. This group might be expected to be reasonably sanguine about the prospect of attending court. However, even these experts often found the process stressful and saw significant problems with the courts’ treatment of expert evidence.

There is a distinction to be made between those who appear as experts as an unavoidable, but unwanted, part of their specialism, such as paediatrics, and those who choose to work as expert witnesses, for example by applying to be on the register of Family Court experts. The latter actively seek the work and it is a source of income, whereas for medical doctors it is an additional burden and does not represent income. Some, such as DSAC doctors, fall somewhere between the two: they choose a role which will lead to court more often than their ordinary role, but they do so out of a sense of public duty – in DSAC’s case they generally mentioned the need to ensure there is an appropriate medical service for women and children alleging sexual assault. These experts see themselves more as putting themselves in the firing line than as choosing work for which they have an aptitude.

It is also possible that the Family Court experts’ relative comfort results from the nature of the Family Court itself. Experts in the Family Court are generally court-appointed and therefore may feel less pressure and experience more respect than do those in the criminal system. Even experts appearing in the Family Court not as the court’s witness but as a party-appointee critiquing the court-appointed expert, they appear within a well-established and structured process of consultation designed to reduce conflict. Psychologists also benefit from a professional organisation which has set out clear guidelines for its members working in the Family Court.

DSAC experts are an interesting comparison group in this respect. They too choose to appear as experts. Further, they have, as a group, the best training, the best collegial support and, overall, the clearest and most sophisticated understanding of their ethical role of any of the experts we interviewed. However, it is still our impression that their members generally find the court process stressful and disturbing. DSAC doctors appear almost exclusively in the criminal courts.

3.3 Stress Factors

The major issues which caused the expert witnesses stress were the time required for the work on top of their normal case loads, the frequent delays and re-scheduling of their appearances and cross-examination. They also found the alien environment of court and unfamiliarity of its protocol stressful and disliked the way in which opposing evidence is handled. Various experts reported that stress decreased their ability to give their evidence as fully or clearly as they would otherwise have liked.

The main causes of stress appear to be unfamiliarity with the court process. The small group who said they enjoy aspects of testifying were often amongst the most frequent attendees: Some as much as fortnightly, although others who attended as regularly did not enjoy the experience. Training also clearly reduced stress, especially in initial appearances. Conversely, the first few appearances were generally the least happy and a lack of understanding of the court process and their role were responsible for some of the most stressful experiences the experts reported to us.

One important issue is that most of these experts had appeared in court regularly over long periods, some appeared more infrequently than others. Those who appeared infrequently had not had time to become familiar with the court process and nor had they had sufficient opportunity to cement skills acquired in training or in previous cases. Thus apparently experienced expert witnesses still found the court process highly confusing and stressful.

Almost all of the lawyers to whom we spoke shared the perception that many experts dislike and avoid court, and largely understood their reasons. However, they nonetheless believed that most experts were or should be fully conversant with the court process and able to “fight their

corner” with cross-examiners. This assumption meant that most of the lawyers did not bother to brief experts on the court process unless they specifically asked.

Conversely, while a few of the judges were unsurprised by the experts’ dislike of court, commenting that all witnesses “feel as if they are on trial” under examination, most were initially surprised by the extent of the experts’ stress and disquiet. All but one said that nothing in experts’ demeanour in court had given them to suppose that they were intimidated or confused. They shared the lawyers’ perception that most expert witnesses are knowledgeable about and comfortable in the court system. Accordingly, they were also surprised that cross- examination caused experts difficulty, and questioned why experts were unable to anticipate the direction of questioning or to stand up to lawyers over unfair questions.

The judges commented that it would be necessary to bear in mind that experts in fact may be more vulnerable and less practiced than they had previously assumed. One commented that the “bottom line” was that it is incorrect to assume that “expert witnesses are expert in court.” Another commented that, overall, while he had initially felt the experts simply “took umbrage at being challenged” he had concluded that they had “a perfect right to be angry” given the way the court system, and especially prosecution and defence lawyers, treat them.

3.4 Briefing

We did not anticipate that briefing would become a major focus of this study. However, it soon became apparent during the interviews with experts that they regard it as one of the key issues. The experts saw the time and effort lawyers put into briefing as highly significant to the success of any encounter with the courts. The importance they placed on briefing lay not in the ability of the lawyer to explain the court process to them (something very few ever do) but in the expert explaining the evidence to the lawyer. Lack of briefing was one of the major complaints. They said that it is usual for prosecutors to brief “for 15 minutes at the courtroom door”, which they regarded as extremely insufficient. They noted that defence counsel generally spend much more time with them and that prosecutors will spend more time when the case is complex or high profile. However, the experts consider that too often prosecutors underestimate the complexity of expert evidence, or overestimate their own competence in it, resulting in mistakes and omissions in the way evidence is elicited. They also criticised some cross-examining lawyers for not understanding the evidence, for pursuing irrelevancies and failing to identify valid issues.

The lawyers were largely in agreement that “15 minutes at the courtroom door” is not sufficient, but half the group, all of whom had practised as prosecutors, noted that this was common practice in run-of-the-mill cases (including sexual assault) and questioned whether more can be expected in an environment where, except in exceptional circumstances, prosecutors are paid only 10 hours to prepare for trial.

The judges’ group agreed with the experts’ assessment of its importance to the success of examination in chief, saying that it is obvious where insufficient briefing has taken place, since experts clearly do not know what evidence is relevant and will give irrelevant information and because counsel clearly do not know what to ask and do not understand the experts’ answers. One commented that lack of briefing “extends the hearing time and makes my job [in judge- alone trials] more difficult”. They were unsurprised by the experts’ observations as to the frequent inadequacy of briefing and advocated strongly for improvement. They said that briefing should include preparation for the court process and examination and suggested that if this was if this was done adequately, it would reduce experts’ anxieties and disillusionment with the courts.

3.5 Inconvenience

The experts found the time required by court particularly difficult. There was a significant workload required to producing reports and reviewing any opposing report (often at late notice), which was generally not allowed for in their normal employment and had therefore to be managed on top of a normal caseload. Cases were generally fraught with delays before and at

court, with experts often being kept waiting at court for hours and often being rescheduled, or cancelled, on the day. Travel to and from court, especially for out of town experts, compounded these difficulties. All court dates and especially rescheduling rebounded upon their patients and meant additional work for colleagues and significant financial loss to those in private practice, especially for rural GPs. At the same time, very few called for increased payment.

The lawyers and judges almost universally agreed that delays are common but said that they are difficult to anticipate or avoid. However, they said that they do strive hard to accommodate experts and would work to fit the court schedule around the expert’s needs were they alerted to them.

3.6 Cross-examination

The style of cross-examination which the experts described having encountered was very recognisable and very conventional. All of the tactics they mention are standard techniques described in numerous manuals for advocates.

Experts generally regarded cross-examination as a poor investigative technique. It was labelled “word-games” and “trickery” with many saying that they had had encounters where their evidence was obstructed or misrepresented under cross-examination. This tended to affect the inexperienced witness worst. Often experts qualified descriptions of unsatisfactory encounters with the comment that they “know better now” or could not now be caught out again in the same way. Many experts, in fact, reported that through experience or training they have learnt how to combat many cross-examination techniques. It appears that some experts are now so skilful at evading cross-examiners’ traps that most lawyers avoid or limit their cross- examination of them, as the lawyers to whom we spoke agreed. The ineffectiveness of cross- examination in dealing with some experts is also supported by comments by the lawyers we interviewed that cross-examination is ineffective against certain highly skilled or “super- charismatic” experts, and also said that where possible they therefore avoid cross-examining some experts altogether.

These comments, especially in light of the empirical research literature on cross-examination, raise questions about lawyers’ traditional claim that cross-examination is an effective investigative technique. If experts can learn to outwit many of the tactics cross-examiners use to investigate their evidence it is of limited use as a test. In such cases, then, there is either little or even (where the lawyer chooses) no testing of the expert evidence. Yet, since the witnesses’ courtroom skills do not necessarily correlate with actual expertise, this may mean the court is left unaware of serious flaws in the evidence. Cross-examination begins to seem simultaneously poor at undermining practised expert witnesses and overly effective at undermining inexperienced ones.

The judges’ group was, as has already been reported, concerned and surprised by the extent to which some experts struggle with cross-examination, and the extent to which this might undermine the accuracy of the overall picture of their evidence. They particularly mentioned a comment by one expert that she will eventually give up correcting a lawyer who tries to restrict her to a yes or no answer. They were struck that experts did not report greater levels of intervention by the prosecutor or judge to prevent tactics such as ambush, multi-clause questions or a yes/no alternative. They stressed the importance of briefing and training to overcome these issues.

3.7 Opposing Experts

Many experts called for greater cooperation between opposing experts, and were concerned over the lack of compliance with Schedule Four of the High Court Rules, which they considered binding on them in the criminal as well as civil courts.

While it was clear that the process of critiquing a report can be stressful, they were generally committed to the concept of a collaborative approach. They were frustrated by the way in which

the Schedule Four requirements that experts meet and produce a joint report are absent from the criminal court. Several commented that defence counsel generally discourage any contact and they have to be assertive in order to obtain permission to even alert the opposite expert that they have been appointed to critique their report.

The lawyers were divided between those who believed meetings between experts and joint memoranda are helpful in resolving issues and those who were concerned to protect their information from disclosure. The judges commented that while the Family Court process for critiquing reports is well-established, often the animosity between experts in the criminal court is too great to allow a successful meeting. They were adamant that Schedule Four does not apply to the criminal court and regarded the habitual reference to it by experts and prosecutors as nonsensical. They also suggested experts themselves or their professional bodies might alert the court to unreliable experts, although it is difficult to see how this might be done.

3.8 Decision-makers’ Competence

The experts had clear concerns about the competence of some decision-makers to assess expert evidence under the current system. They expressed strong doubts about the jury’s competence and there were widespread criticisms of the judiciary as well. In particular, they believed that conflict between opposing expert witnesses serves only to increase the jury’s confusion, although it was common ground between experts, lawyers and judges that only a minority of cases involve more than one expert. The lawyers were similarly concerned, especially about the competence of juries, although they were generally still loath to part with the jury system. The judges stated that juries should be able to grasp the evidence if it has been sufficiently simplified by the expert and counsel, but did not comment upon the system itself.

The experts believe strongly that in evaluating experts and expert evidence decision-makers (judge and jury) are influenced by irrelevant factors including the experts’ clothing, appearance and demeanour, and especially their calmness and confidence. All of the lawyers emphasised the impact of the expert’s presentation skills on the fact finders. There is a certain irony here in that while both experts and lawyers were concerned at the impact of peripheral factors on the fact-finders they still themselves sought to use (or in the lawyers’ case to employ people who use) such factors to support their own evidence. Most experts consciously adopt a persona in court, adjusting their clothing and demeanour, in order to be better accepted by the decision- makers. Most lawyers prefer to instruct the better-performing experts for court. Both groups were clear that the skills of the good expert witness are not necessarily the same as the skills of a good clinician or expert in their field. The experts (and most of the prosecutors) were concerned that the personal charisma of unreliable experts can overwhelm the decision-makers and that because they rely on irrelevant factors the courts are not able to apprehend poor- quality experts.

The empirical research shows that both jury and judge do often struggle to evaluate expert evidence and that they do rely upon peripheral factors in assessing experts. In fact, every day juries are told that the witness’s demeanour is an invaluable clue to their reliability, and appellate courts regularly defer to the trial judge on the basis of their opportunity to assess the witness face to face.413

That experts and lawyers both deliberately manipulate the fact-finders’ assessments, the experts by manipulating their own demeanour and the lawyers by choosing experts with superior presentation skills, can be seen as undermining the legal system’s reliance on the demeanour of the witness as an indicator of reliability.

413 Subject to warnings about certain types of witnesses who may confound expectation, such as child or adult sexual assault complainants.

3.9 Self-management

Overall, while the experts respected some lawyers for their hard work, collegiality and expertise, some are, by their arrogance, their overwork or their incompetence, regarded as impediments to the experts’ ability to give best evidence. As a result of these concerns about the competence of lawyers many experts try to become self-sufficient and to manage their own testimony. This typically extends to arranging for proper briefing but can also include managing the courts’ acceptance of exhibits and learning the relevant law so that, for example, they are not caught out under examination when the lawyer asks for inadmissible information. Some few are also experimenting with insisting on certain dates or times for their appearances.

These experts, who tend to be the most experienced and politically aware, in the sense of the politics of the negotiation of professional dominance, are almost beginning to operate within the courtroom as if it is part of their professional space, rather than accepting the lawyers’ primacy.

Given that expert witnesses are in a special position as regards the court it may be that we should welcome their increased confidence. It seems from their comments that a witness’s lack of confidence endangers the accuracy of their evidence. They repeatedly commented that it was when they lacked confidence to stand up to lawyers that they made errors both of omission (e.g.: by not knowing how to insist on qualifying an answer) and of commission (e.g.: by falling into traps that led them to appear to take positions with which they did not in fact agree or by being led into giving inadmissible evidence).

The judges to whom we spoke welcome experts who are proactive and expect them to be able to negotiate with cross-examiners and to ask the court for assistance when necessary.

Training in courtroom skills was perhaps the most significant self-help measure available to experts. They regarded it as increasing their confidence, the quality of their report-writing and evidence-giving and also their understanding of their ethical responsibilities. One of the most interesting aspects of training was its importance in raising their awareness of the ethos of the adversarial system and in developing in them a protective awareness of the impersonal nature of criticism by cross-examiners. This awareness was considered crucial to coping emotionally with the challenges of giving evidence.

As lawyers almost never de-brief with experts afterwards (based on the experts’ experience and the lawyers’ self-reports), and as few ever obtain transcripts of their evidence, collegial support networks and systems of peer review were also very important in coping with and learning from courtroom experiences. Peer review was also well-regarded as a means of quality control. The judges raised cost as an issue with any requirement of peer review. As regards debriefing, they commented that none had ever been asked for permission to release a transcript of an expert’s evidence, but that they would give it willingly. It was suggested that release of the notes of evidence to experts such as DSAC could become routine.

3.10 Vulnerable Witnesses

One of the more, perhaps, counter-intuitive aspects of this report is the parallel occasionally drawn in the literature review and in the expert interview analysis chapter between experts and child or vulnerable witnesses in the criminal courts. Expert witnesses are the antithesis of vulnerable witnesses. They are always adults. They are always highly intelligent and highly educated. They have the respect of their professions and the court at large. They are discussing their professional work and opinions rather than their personal lives. They are sometimes extensively trained and experienced as witnesses. They are sometimes able to negotiate the terms of their engagement with the trial in a remarkable fashion. Yet, the similarities between the experiences of expert witnesses and of vulnerable witnesses are striking, as the judges remarked in our discussion.

The extensive research literature on vulnerable witnesses in the criminal courts (including vulnerable defendants) reflects a very similar pattern of criticisms about the aggressive and

manipulative nature of cross-examination; about the types of questions, including the use of repeated and bundled questions, of yes/no questions and of funnelling; of long delays before and at trial and frequent rescheduling of court dates; of poor and daunting waiting facilities and of thoughtless and time-poor lawyers. Studies also produce similar discussions of the stress and distress caused not only by these aspects of the trial process but also by the alien environment of the courtroom and the unfamiliarity of its protocol.

The point of raising these parallels is not to denigrate experts but to suggest that the current definition of the problem with the adversarial trial as regards witnesses is far too narrow. The problems experienced by vulnerable witnesses are almost invariably seen by policy-makers as peculiar to them alone, and the measures to improve matters are accordingly restricted to them alone. The comments these experts make suggest the adversarial trial and adversarial examination are in fact problematic on a much wider scale. If the nature of the witnesses – even as widely differing as experts are from children - does not make much difference, then the system not the witnesses may be the issue. It begins to seem that the only people for whom the adversarial system does work are lawyers and judges.

3.11. Reform Options

The reforms discussed with our interviewees and with the judges included both measures that could be implemented immediately and some which require more fundamental change. In the former category, the experts urged that there be improvements in briefing by prosecutors in particular and in scheduling procedures; that the courts and lawyers strive to ensure that opposing experts’ reports are disclosed in a timely fashion, and that Schedule Four of the High Court Rules, including the requirements for experts’ conferencing, be adopted in both the criminal and Family Court jurisdictions.

Further, the experts urged that training in courtroom skills be made available to more experts, or even that it be compulsory. It is clear that the DSAC training programme is highly thought of (the ESR programme was not able to be explored during this project). DSAC’s peer review systems also earned praise from members. All of the judges and some lawyers stressed the importance of experts obtaining training in court room skills, in ethics and in the philosophy of the adversarial system.

The experts (and some lawyers) would also welcome increased specialisation or training by judges and lawyers, and judge-alone trials were given some support. The lawyers generally did not support judge-alone trials but were often critical of the jury’s ability to understand complex expert evidence. The judges commented that for the jury to understand the evidence the expert and counsel must be extremely clear in their explanations. For themselves, they said that they would welcome additional training on evaluating expert evidence and also that they would welcome regular feedback from experts as a group regarding their interactions with the courts.

The experts also endorsed changes to the way in which experts are appointed, with suggestions that the criminal courts follow the Family Court and appoint experts themselves in the first instance. This, they felt would both free experts from covert pressure to take a side and lift the current suspicion they believe some courts harbour that all experts are partisan when generally they strive hard to remain neutral. There were also suggestions that there be some form of expert panel or court-appointed expert who could advise the judge in his or her deliberations regarding the reliability of the parties’ expert evidence. The lawyers were less convinced of these options. The judges were not at all convinced that either option was compatible with the criminal court, especially in jury trials.

Experts also raised the idea of the specialist forensic expert witness who would give opinion evidence based on another expert’s clinical findings and thus relieve the need for most experts to come to court. While this was attractive to many of the experts it was not generally accepted. The experts felt that it would require a degree of trust and familiarity with the clinical expert’s

work that is generally impossible in the New Zealand context, where there are relatively few experts and they are so far-flung they are often not well-known to one another.

The idea of remote participation via video-conference met with mixed reactions from the experts. While it would be warmly welcomed as a way to cut travel to distant courts and as a way to cut waiting times even at local courts, some were concerned that evidence delivered via screen would be less well-received by juries. The judges were supportive of remote participation in most cases.

Alternative processes, such as experts appearing consecutively or concurrently in a panel or “hot-tub” situation were generally welcomed by both experts and lawyers. There were some concerns that concurrent evidence-giving, which was not something most experts had heard of previously, might be open to abuse by a dominant expert. However, both lawyers and experts grasped immediately its potential to clarify the evidence and to prevent or correct misstatements by over-confident or otherwise unreliable experts. The lawyers said that the existing disclosure regime negates any claim that an hot-tub would unduly impede counsel’s case presentation or ability to surprise an expert in cross-examination. Those few experts and lawyers who had experienced a hot-tub were highly supportive of the process. The judges were very supportive of the immediate use of consecutive evidence, pointing out that clear provision exists to order it for expert witnesses in section 367(1C) of the Crimes Act. However, they were not at all supportive of concurrent evidence in the criminal setting, especially in a jury trial context. They felt that juries might be more confused by concurrent evidence than by the normal process.

  1. Recommendations

The recommendations are divided into the following categories: Measures practitioners could implement independently; better pre-trial practice for lawyers and the judiciary to consider; trial reform; and measures to improve the situation where there is opposing expert evidence.

What is pleasing is that very little of what is suggested here requires any change to the current system and still less requires any alteration of the current legislative framework. Most of the measures we suggest would improve expert evidence in our courts and increase the engagement of experts with the justice system can be implemented immediately by lawyers or by experts. Some other, seemingly more radical measures (such as concurrent evidence) would in our view still not require any legislative reform but merely the willingness of the judiciary and the legal profession to countenance their introduction.

We do not, however, recommend increasing the admissibility threshold for expert evidence. The US experience is that a more complex test is not a successful method of improving reliability. Our legislative test remains adequate if other methods are adopted to scaffold the courts’ use thereof. We have not made any recommendation as to the greater use of disciplinary action by professional bodies or the reduction of the witness immunity. We do not consider either is likely to be a real disincentive to expert witnesses. Nor do we recommend the use of court-appointed experts in the criminal court because of the difficulties in integrating such an appointment into a partisan process.

4.1 Measures For Practitioners

The first four measures can all be implemented by experts and their professional organisations and by lawyers.

4.1.1 Expert training for court

We strongly recommend that training programmes in court room skills and the ethical responsibilities of expert witnesses be established for expert witnesses across all professional groups. Training is one of the most important factors in improving the quality of experts’ evidence and their performance in court.

It is recommended that the existing DSAC and ESR programmes should be considered as possible models. It is possible that the universities could play a role in this, whether by the introduction of post-graduate courses (as is contemplated at Otago Law School) or through liaison between law schools and the medical, psychology and other relevant faculties to create papers or units within papers for undergraduates who may one day be required to appear as expert witnesses.

Training for experts should include (inter alia):

  1. The ethical responsibilities of the expert witness and in particular the forensic expert philosophy;
  2. What to require from the lawyer calling the witness;
  3. Appropriate clothing and manner in court;
  4. The basic protocol in court (including descriptions of the roles of court officers, the oath or affirmation and the protocols for sitting and standing etc);
  5. Evidence law relating to expert evidence;
  6. Procedures for contacting an opposing expert and producing a joint memorandum;
  7. The philosophy of the adversarial system and an explanation of the purpose of cross- examination which makes it plain to participants that lawyers are not tied to what the expert may believe are reasonable lines of inquiry and that the lawyer may attempt to mislead them in questions. They also need to be reassured that they are entitled to seek clarification, to request to be allowed to give qualifying information and to challenge questions containing assumptions or misstatements;
  8. Cross-examination tactics and rebuttal strategies, including:

There is an irony in criticising fact-finders for over-reliance on the expert’s performance ability as a means of assessment and then seeking to inculcate some of the same performance skills in yet more experts. However, some skills, while irrelevant to actual expertise, are still highly important in the current system. These include the ability to explain matters clearly to lay people and the ability to negotiate and withstand cross-examination. These skills are not about disguising poor evidence but about the facilitation of the witness’s best evidence. It may be regrettable that experts must work within a system where professional expertise is not enough to enable them to lay their evidence before the fact-finders fully and accurately but it is also, at this point, inescapable.

At this stage, accreditation or mandatory training prior to appearing as an expert in court is not feasible as there is too little training available. At some later point accreditation may become feasible.

4.1.2 Pamphlet

In addition to training, and especially while there is so little training available, it is recommended that a short pamphlet or booklet be produced for expert witnesses explaining the basic court process, their ethical role and responsibilities and giving some simple advice for answering questions in court.

The Ministry for Courts has produced similar pamphlets for lay people covering such things as basic Family Court processes etc. There has also been extensive work done producing written material for child witnesses.

A pamphlet, while an inadequate substitute for proper training, would provide some assistance to experts unaccustomed to the courts. Even experts who have had training or experience in court previously often appear too seldom to be thoroughly familiar with the protocol and are likely to welcome reminders.

4.1.3 Expert code of ethics and peer review

It is recommended that professional organisations whose members regularly appear in court should give thought to including within their code of ethics rules relating to conduct as expert witnesses in court. The courts already have a code for experts in Schedule four of the High Court Rules, although it is inconsistently applied.

It is also recommended that it should be required under any code of ethics for expert witnesses that written statements be peer reviewed prior to submission into court.

Regardless, the courts could begin to treat the fact that an expert had undertaken peer review as a standard factor in its assessment of the credibility and reliability of expert evidence in pre- trial admissibility hearings (or voire dire).

There are a number of ways by which peer review could be achieved.

A number of groups already peer review their reports: DSAC doctors peer review all court reports. This is the gold standard. However, many experts already arrange for reviews of more difficult reports. If this practice could be extended it would benefit the court greatly by improving the quality of expert’s evidence and providing greater assurance as to the expert’s adherence to standards of good practice.

The question of who should review reports is another matter. At the least the court should require that a reviewer hold a current practising certificate. Experts in the Family Court might rely upon the list of approved Family Court expert witnesses Professional bodies might also establish a list of accredited reviewers.

4.1.4 Training for lawyers

It is also recommended that law schools and Law Society advocacy training programmes give greater attention to expert evidence and in particular to assessing expert evidence and understanding the fundamental principles of scientific inquiry. It is also suggested that the Law Society consider running Continuing Legal Education programmes not only on the relevant laws of evidence but on the state of research and the assessment of expert evidence in child abuse and neglect and sex assault cases, including psychiatric testing and psychological reports, for both Family Court and criminal court lawyers.

It is suggested that a greater understanding will result in a greater ability to critique reports appropriately and will assist to prevent the misuse of expert evidence and consequent miscarriages of justice.

Training should include strong advice on the necessity of briefing experts about both their evidence and about the court process; the importance of debriefing experts properly and the importance of requesting copies of the expert’s notes of evidence as a matter of routine.

4.2 Pre-trial Practice in the Courts

This section covers recommended changes to current practices before trial or hearing.

4.2.1 Briefing

Perhaps the single best action lawyers can take to improve the quality of their examination in chief and of their cross-examination is to brief their expert witnesses properly.

Proper briefing does not equate to 15 minutes on the day the expert is scheduled to give evidence. Even in simple cases where lawyers believe they understand the evidence well, there should be at least two in-depth discussions. First, contact should be made at least a week beforehand to go over the evidence and to discuss any issues either might have. Ideally lawyers should meet the expert and go through their evidence. It is possible phone calls and email exchanges might be sufficient.

A second face-to-face meeting should take place on the day of trial. The expert should be given relevant information about the trial or hearing to date and be alerted to the issues the lawyer believes he or she is likely to be questioned on.

Lawyers should never assume that experts are familiar with and confident in the court system. Many are untrained or appear infrequently and may not remember their training. Lawyers should ask whether the expert has questions and be ready to provide information about the process and protocol and about dealing with cross-examination as if the expert were an ordinary witness. Many experts are very fearful of appearing in court. Any assistance that they can be given is likely to reduce their stress levels and improve their performance.

Lawyers also need to be more conscious that the expert is ultimately the court’s witness and not their own – just as they themselves have ethical responsibilities as officers of the court which override their responsibilities to their clients. Expert witnesses should never be pressured to modify their conclusions.

It is also suggested that judges could help to underline the importance of briefing to the Bar by speaking to lawyers who are obviously unprepared to question expert witnesses or who have obviously not prepared their experts properly. Obviously, this need not be done in the presence of the jury in a criminal trial. Very few lawyers will not take note of a judge’s reprimand.

Further, just as it is recommended that lawyers should always contact expert witnesses after they give evidence with the result of the trial or hearing and an offer to discuss their examination. It is not sufficient for prosecutors, for example, to delegate responsibility to debrief experts to the officer in charge. Lawyers should also routinely request the judge’s permission to release a copy of any written decision and any transcript of the expert’s testimony to the expert.

Expert witnesses appear repeatedly in the courts and feedback on their performance is therefore important for their future work. Lawyers should bear in mind in discussing this with experts that some experts will feel defensive or battered by the court process. Judges already occasionally engage with counsel post-trial to discuss its conduct, a process lawyers find beneficial. While there are issues around the possibility of raising new grounds of appeal, judges, especially those in jury trials, might also consider whether after the trial they could discuss the examination with the expert, given the special role of the expert witness within court.

4.2.2 Disclosure

This study suggests that disclosure of defence expert reports often occurs later than the statutory 14 day minimum. Late disclosure of expert reports limits the ability of the prosecution expert to respond to them meaningfully, including by the preparation of further evidence to clarify issues, and thus deprives the court of useful information. Late disclosure may also deprive the court and parties of the benefit of the realisation of areas of agreement, or even of prosecution experts changing their opinions.

It is recommended that the courts police the disclosure of opposing expert reports more thoroughly and that they be more willing to impose the penalty of either deferring the trial or refusing to admit the expert’s evidence.

We are also aware of some limited anecdotal evidence that defence counsel are deliberately minimising disclosure by producing very restricted briefs of evidence for their experts. In England and Wales some defence counsel responded to the new requirements that they disclose the defence case theory with extremely restricted statements. This limited the usefulness of the initiative in preventing trial by ambush. An analogous practice ought not to be allowed to develop here.

Defence expert reports should be appropriately detailed and properly referenced so as to enable the prosecution experts to understand the defence expert’s position and criticisms. Only then will a thorough and useful discussion of the evidence ensue.

4.3 Trial Reform

The next section considers a series of reforms to the current trial process. However, the following section also contains a series of further recommendations for the reform of the trial process when opposing expert evidence is called.

4.3.1 Scheduling

Requiring experts alter the timing of their appearance at short notice (e.g.: to return the day after they were scheduled to give evidence) can be extremely disruptive not only to the expert but also colleagues and to patients or clients.

The courts and lawyers should endeavour to give experts certainty about the time and date of their court appearances. Lawyers should ensure experts are asked for any dates they are unavailable in the way in which police officers are asked to provide such dates. Lawyers should keep experts well-informed of the likelihood of any delays or rescheduling both before and on the day of trial/hearing.

Courts should be ready to adopt a more flexible approach to expert witnesses, including by extending or altering court hours to allow experts to give evidence as expeditiously as possible. Lawyers should be proactive in seeking flexibility from the court.

4.3.2 Read-only statements

It is not recommended that expert witnesses’ statements be read only. Reading an expert witnesses’ statement exacerbates the fact-finders’ difficulties in comprehending the evidence, even where it is apparently straight forward (as in the case of a “no-findings” genital exam). Best practice should be for the expert to explain the evidence in person.

This is not to say that evidence could not be presented remotely or even be pre-recorded. There have been multiple studies of the impact of CCTV and video evidence. They do not show that presentation via a screen either adds to or detracts from the jury’s acceptance of the evidence.

4.3.3 Remote participation and pre-recorded evidence

It is recommended that the courts make greater use of technology to facilitate experts to give evidence expeditiously.

As much as possible, experts should be allowed to testify by audio visual link. Contrary to opinion, empirical researchers have not been able to find that the use of audio-visual links has either a negative or a positive effect on jury assessments of witnesses.414 The likely cost and time savings are considerable, especially given that the necessary equipment is, in many cases, already available.

There is already clear legislative provision for remote participation under the Courts (Remote Participation) Act 2010, the terms of which are not onerous.415 Already it is not unusual for witnesses, especially defence experts, to testify by audio-visual link from overseas. Various courts already have facilities which would enable experts to participate in proceedings remotely, while others already regularly arrange to borrow the equipment. Various hospitals and ESR facilities also have the technology available, and apparently it is used to communicate with the courts on occasion.

There is also the possibility that the court might allow experts’ evidence to be pre-recorded. There is limited provision for this to happen already. Defence witnesses’ evidence can be pre-

414 Hanna et al 2010 at 106-113 reviews research literature.

415 Sections 5, 6 & 8 of the Courts (Remote Participation) Act 2010.

recorded “if for any reason [it is] considered desirable or expedient.”416 Crown witnesses’ evidence can also be pre-recorded if they are due to go overseas before trial or are terminally ill and unlikely to live to trial.417 There is also the more remote possibility that evidence can be pre-recorded in its entirety under sections 103 & 105 of the Evidence Act 2006, currently being used to pre-record children’s evidence but thus only where severe consequences are likely should the witness be delayed in giving their evidence. Parliament is currently considering proposals to make pre-recording more available to all children under 12. England and Wales already have legislation explicitly allowing pre-recording of vulnerable witnesses’ evidence418 but have yet to pilot the provision, although discussion is ongoing.419

Both these processes would have significant cost benefits to the country overall: They would render delays and rescheduling less intrusive for the expert witness; reduce the loss of employee time in public hospitals and private clinics who otherwise see their staff taken out of circulation for days at a time and prevent the consequent cancellation of surgical and other appointments.

We reiterate that multiple studies have been unable to show that video presentation of evidence has any effect – good or bad - on jurors’ perceptions of the evidence.

4.3.4 Cross-examination

The findings of this study in relation to cross-examination begin to suggest that some conventional cross-examination techniques may be counter-productive as ways of testing experts’ evidence.

In some cases conventional cross-examination tactics may confuse experts and prevent their giving their evidence as accurately and fully as they might otherwise. In other cases, some experts are so adept at presenting their evidence and at subverting or avoiding tactics intended to test them as to give a falsely positive impression of their evidence and credibility.

It is therefore recommended that the courts and lawyers pay closer attention to ensuring that experts understand the questions they are asked and that they have a full opportunity to respond.

It is recommended that lawyers use short questions containing one idea at a time and that they not use multi-part questions, that they not prevent experts from qualifying their responses and that they not ambush experts with new factual information or literature.

It is also recommended that lawyers refrain from attempting to distress or aggravate experts as this also detracts from their ability to respond accurately and fully.

Judges and prosecutors alike should intervene in cross-examination more often, especially with less experienced or confident experts. Section 85 of the Evidence Act 2006, which essentially codifies the pre-existing common law rules of cross-examination, gives more than adequate support for action.420

In the case of highly experienced or super-charismatic expert witnesses, cross-examination may not be sufficient to expose flaws in their evidence. It is suggested that serious consideration be given to other methods discussed here (concurrent or consecutive evidence, the use of specialist judges and judge-alone trials) which may make the evidence easier to understand or improve the skills of the fact-finders to understand that evidence.

416 Section 31 Summary Proceedings Act 1957.

417 Sections 32 & 33 Summary Proceedings Act 1957.

418 Section 28 Youth Justice and Criminal Evidence Act1999.

419 Spencer, conclusion, in Spencer & Lamb; Plotnikoff & Woolfson in Spencer & Lamb.

420 Section 85 Evidence Act 2006: “Unacceptable questions: (1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.”

4.3.5 Specialist judges and judge-alone criminal trials

In light of the empirical evidence that many judges struggle with expert evidence as much as do jurors, it is recommended that consideration be given to training judges to understand and deal with the expert evidence likely to arise in child abuse and neglect cases and in sexual assault cases. Training might usefully include medical qualification structures and specialties, what to expect of an expert report and some basic acquaintance with the state of scientific opinion in relevant areas.

Greater judicial training in this area would have multiple benefits, improving the quality of pre- trial decisions as to the admissibility of expert evidence in both the criminal and Family Courts as well as improving judges’ factual findings in judge-alone trials or hearings in the Family Court.

There are already some types of criminal trial heard by specialist judges, both here and overseas, and there are well-argued proposals to extend judicial specialism to other types of offence, including sexual assault cases, although not because of their reliance on expert evidence.421 We argue that the case for specialism for judges hearing complex expert evidence is equally strong.

It might also be worthwhile, as suggested by the judges to whom we spoke, to consider some sort of liaison process between the judiciary and representatives of expert witnesses in order to share views as to the way in which the two interact.

The next issue is how to deal with the problems empirical research has found with the jury’s competence to assess expert evidence, research which is supported by both the experts’ and the lawyers’ observations. While it is a reasonably straightforward (if time-consuming) process to provide the judiciary with further training, we do not consider it is realistic to try to train jurors to assess expert evidence. Family Court cases are already heard by judges alone. It is submitted that consideration should also be given to allowing criminal cases involving complex expert evidence to be heard by judge alone.

Restricting a trial involving complex expert evidence to a judge alone is already possible in New Zealand in certain circumstances. The penalty must be less than 14 years imprisonment and either the accused must elect it, with the judge’s permission,422 or the judge can order it where the trial is likely to be “long and complex”,423 “long” usually meaning three weeks or more.424 This provision is usually relied upon in serious fraud trails, but has also been applied in other complicated cases.425 However, many evidentially complex child abuse and neglect cases will not require three weeks’ hearing time while others that are both “long and complex” will involve offences where the maximum penalty is over 14 years, such as those involving very serious injury or death and in rape cases.426 Thus increasing the number of judge-alone criminal trials would require legislative change to enable judges to try cases with a greater maximum penalty alone.

4.4 Opposing Expert Evidence

It appears from our discussions with experts, lawyers and judges that trials involving opposing experts are in the minority. Most experts appear alone, but opposing experts are more likely to

421 See NZLC discussion paper and MacDonald & Tinsley 258-64.

422 Section 66 Summary Proceedings Act 1957; Section 361C Crimes Act 1961.

423 Section 361D; see s.361D(4)(a): “the Judge must take into account the following matters: (a) the number and nature of the offences with which the accused person is charged: (b) the nature of the issues likely to be involved:

(a) the volume of evidence likely to be presented: (d) the imposition on potential jurors of sitting for the likely duration of the trial: (e) any other matters the Judge considers relevant.”

424 MacDonald & Tinsley 245, fn.104.

425 E.g.: Iti v R [2011] NZCA 114; Signer v R [2011] NZSC 46.

426 Although many serious assaults and injuries short of murder have penalties of under 14 years imprisonment (ie: Crimes Act 1961 ss.188(2)-190, s.191(2) and ss.192-195A), as do a number of serious sexual offences short of sexual violation (Crimes Act 1961 ss.131, 131B, 132(3), 134, 135).

be called in the most serious criminal cases. The following are suggestions for the reform of the process where two or more experts are called on one point.

4.4.2 Pre-trial disposition of the expert evidence

It is recommended that to the greatest extent possible conflict between experts be resolved before any jury trial in order to avoid taxing the jury’s comprehension.

Parties could also make greater use of voire dire to ensure the witness has the requisite expertise to give the evidence.

It is suggested that the parties should always produce a statement of agreed facts even where there is no opposing expert. This will reduce the evidence that need be traversed before the jury. Further, if agreement on the issues were reached reasonably promptly, it would also reduce the scope of the experts’ preparation.

There is evidence that many experts are not in contact with their opposing numbers prior to trial and nor are they producing joint memoranda. It appears that at least part of the reason for this is that lawyers (especially defence counsel) discourage contact between experts.

Joint memoranda, even where limited in scope, clarify the issues and reduce the evidence that need be traversed in court, since anything not in dispute need not be explored in depth. This can result in time and cost savings to all concerned.

It is recommended that counsel make it a practice to seek directions that experts consult and produce a joint memorandum and that the courts initiate such directions where they are not requested by counsel.

To allay fears regarding possible breaches of legal advice privilege during the experts’ meeting (i.e.: the possible disclosure of information confidential as between lawyer and expert or expert and party) the judge should consider issuing directions that the terms of the discussion are bound by the extent of disclosure in the experts’ formal written statements, or by an agreed list of questions.

On occasion it may be that the court should consider ordering that consultation be facilitated by a third party. In the Family Court it may be that Counsel for Child or Counsel to Assist might play this role.

Joint memoranda should be of sufficient simplicity and clarity to be comprehensible to the jury. At trial the memoranda should be read to the jury, as are agreed statements of fact. It is suggested that the memorandum should be produced to the jury together with the indictment and other documentation.

There is an issue in that experts’ time for consultation and pre-trial appearances would need to be paid. However, it is suggested that these additional costs will be off-set by the cost-savings anticipated at the trial stage or by the earlier resolution of the matter following the expert consultation process.

4.4.3 Consecutive and concurrent evidence

Where opposing evidence is to be heard, it is recommended that consideration be given to calling the experts consecutively or concurrently.

It is already possible for expert witnesses to give evidence consecutively on the application of the defence under an explicit provision of the Crimes Act 1961.427 Further, there is nothing to prevent a judge from granting the Crown’s application under the courts’ inherent jurisdiction. Neither the Crimes Act 1961 nor the Evidence Act 2006 require evidence to be called in the conventional order,428 provided that the parties’ and, most especially, the accused’s right to see,

427 S.367(1C)&(1D) Crimes Act 1961.

428 S.367(1) & (1A) Crimes Act 1961.

hear and challenge the evidence is preserved.429 In the Family Court the path to alternative processes is even smoother since it operates a semi-inquisitorial process.

However, while consecutive evidence-giving might seem more attractive than concurrent evidence, since it is less of a departure from normal process and the path to it is so much clearer, the benefits of concurrent evidence far outweigh those of consecutive evidence, while the costs are similar. Accordingly, while consecutive evidence would be preferable to the current process, it is recommended that serious consideration be given to allowing opposing experts give evidence concurrently in both the Family and criminal courts.

The advantage of consecutive evidence is that it removes the delay between opposing experts’ testimony, thereby reducing the strain on fact-finders’ memories. The follow-on format may also make it easier for experts to schedule time to sit in on each other’s evidence rather than finding time to return to court at a later date. Concurrent evidence offers these advantages and also provides a clearer and more focused inquiry. Concurrent evidence focuses discussion on the issues in dispute, removing the need to discuss extraneous material and reducing time in court accordingly. It also provides a clearer presentation of the evidence in that the experts discuss the evidence topic by topic and answer each other directly and immediately. Other experts on the panel are also better equipped to discover unreliable evidence than are lawyers in conventional cross-examination. The lack of conventional cross-examination also means concurrent evidence is experienced by experts as a more respectful and fair process.

If this recommendation were to be taken forward, it would probably be necessary for a draft protocol to be established for the guidance of trial judges, experts and counsel. Experience in Australia is that concurrent evidence requires proper disclosure and for the experts to consult and produce a joint memorandum setting out issues in dispute. Good pre-trial management and good judicial management of the courtroom are necessary to ensure a fair process.

Interestingly for such a seemingly radical proposal, the arguments against concurrent evidence appear not to involve issues of principle, but rather unfamiliarity with the process and attachment to the status quo.

Some of the judges to whom we spoke were concerned that juries might find a concurrent evidence process hard to understand because it would be contrary to their expectations. However, the increased clarity of the evidence could outweigh any momentary surprise. Moreover, the empirical research suggests that juries already find the normal process difficult to follow. Conversely, the panel discussion is already familiar from debates in radio and television news programmes.

Concurrent evidence does disrupt both parties’ narrative by presenting the expert evidence out of order. However, this disadvantage is also outweighed by the increased clarity of the evidence. Further, counsel already regularly allow expert witnesses to appear out of logical order, or even adjourn other witnesses’ evidence to accommodate experts. Such interruptions are likely to be far more confusing to a jury than a well sign-posted concurrent evidence process.

Lawyers would lose considerable control over the witnesses under a concurrent process, especially as compared to conventional cross-examination. This might be seen as a diminution of parties’ rights to test opposing witnesses. However, while the process in concurrent evidence is markedly different to normal cross-examination, there is nothing to say that that form is not an equally – or perhaps more – effective way to challenge the evidence. The Australian experience in the civil jurisdiction is that it is superior to conventional cross-examination. Counsel still has a good opportunity to challenge the expert and, crucially, the party’s own expert is able to assist counsel directly. The involvement of the party’s own expert mitigates the impact of any deficit in counsel’s understanding of the evidence, an issue flagged in studies of lawyers’ ability to challenge experts.

429 S.83 Evidence Act 2006.

There are no barriers to the Family Court introducing a concurrent process. It is suggested that there are also fewer barriers to its introduction in the criminal court than might be thought, since none of the provisions setting out the order in which evidence is called in the court prohibit a concurrent process.

Section 83 of the Evidence Act 2006 arguably already provides sufficient scope for simultaneous testimony since nothing in the section prevents witnesses appearing together provided they give evidence orally and in the presence of the parties, judge, jury, counsel and the public.430 Section 84 of the same Act implicitly acknowledges that the usual order can be altered by the judge. 431 Meanwhile, section 367 of the Crimes Act 1961 sets out the normal process for calling witnesses, but the description is not exclusive of other methods of proceeding. The section’s only mandatory aspect is that should counsel wish to call witnesses they cannot be prevented from doing so.432 Thus it is suggested that counsel have the right to call evidence concurrently by consent, and, arguably, there is nothing to prevent the court from allowing expert evidence to be called concurrently on the Crown’s application.

  1. Conclusion

Two concerns originally motivated this study. The first was an awareness of anecdotal reports both from expert witnesses and from lawyers that many experts are reluctant to give evidence because they find the process unpleasant and counter-productive. The second was a more esoteric interest in the experiences of expert witnesses in the courts as a way of exploring the adversarial system’s approach to oral evidence, a field dominated by concerns over the situation of vulnerable and especially child witnesses under cross-examination.

A third issue, very much alive in the New Zealand media at the time of writing,433 was the reliability of the expert evidence coming before our courts, and the implications where that evidence is of poor quality. In the last decade the concern that unreliable expert evidence can lead to miscarriages to justice has been frighteningly borne out in the many cases uncovered by the Innocence Project in the US and by the SIDS child death appeals in the UK. The reaction of the media and courts in the UK to the revelation of unreliable expert evidence has led to claims that expert witnesses would become markedly more reluctant to appear, thus tying our first and last concerns closely together.

We set out to explore these issues through a large qualitative study of the opinions of expert witnesses in the related fields of child abuse and neglect and sexual assault, using a smaller sample of lawyers to test the expert witnesses’ responses.

Our conclusion is that while the expert witnesses to whom we spoke appear to be conscientious and committed to giving the courts impartial advice, the court process and the support structures around expert witnesses leave a lot to be desired.

We have found strong support for the anecdotal reports that expert witnesses dislike the court process and would prefer to avoid any involvement. However, the situation in New Zealand does not appear to be worsening in reaction to recent events. Rather the concerns expressed to us reflect long-standing issues with the court process and with lawyers.

430 Section 83 Evidence Act 2006 states that the “[o]rdinary way of giving [oral] evidence” is: “(a) in a criminal or civil proceeding, orally in a courtroom in the presence of—(i) the Judge or, if there is a jury, the Judge and jury; and (ii) the parties to the proceeding and their counsel; and (iii) any member of the public who wishes to be present, unless excluded by order of the Judge.”

431 Section 84 Evidence Act 2006 states that: “Unless this Act or any other enactment provides otherwise, or the Judge directs to the contrary, in any proceeding—(a) a witness first gives evidence in chief; and (b) after giving evidence in chief, the witness may be cross-examined by all parties”. [italics added].

432 Section 367 Crimes Act 1961 “(1) Upon the trial of any accused person, counsel for the prosecution may open his case and after such opening (if any) shall be entitled to call such witnesses as he thinks fit; and the accused person, whether he is defended by counsel or not, shall be allowed at the end of the case for the prosecution, if he thinks fit, to open his case, and after such opening (if any) shall be entitled to call such witnesses as he thinks fit.”

433 See e.g.: North and South Magazine July 2012 covering both the Gwaze and MacGregor trials and the Dominion Post article by MacDonald N “Experts on Trial” 15 December 2012.

The second motivating factor – the possibility that light might be thrown on the adversarial system’s treatment of oral evidence – has also produced interesting results. We suggest that the current processes for eliciting and testing witnesses’ evidence are inadequate for expert witnesses, especially in the context of an audience of non-specialist fact-finders. It appears that conventional cross-examination, for example, is both likely to distort the evidence of less assertive or experienced experts and at the same time is unlikely to be able to penetrate the defences of more skilled witnesses. We suggest that it may be not only vulnerable witnesses for whom conventional examination is inappropriate.

At the same time, it appears to us that many of the most promising ways forward are within our (collective) grasp. While some of our recommendations may appear radical, most only involve better case-management by judges of processes already set out in the rules of practice and improved professionalism amongst lawyers. Others, such as training and ethics codes, are matters within the control of professional organisations independently of the courts or the legislature, and for which there are well-established and successful models within New Zealand. Even the reform options which appear genuinely radical, such as the recommendation that courts allow concurrent evidence, are arguably within the current legislative framework or, like the appointment of expert assessors, the inherent jurisdiction of the courts. Only the expansion of judge-alone trials to offences bearing penalties in excess of 14 years obviously requires legislative change. We also suggest that the greater use of pre-trial processes to reduce the scope of expert evidence and the use of concurrent evidence should overall save both time and cost.

Overall, we suggest that the findings in this study show that there is a serious problem with the treatment of expert evidence in New Zealand courts. However, in our opinion, the solutions to the issues are close at hand and many are relatively easy to implement. Further research, especially in the civil and Family Courts, would be beneficial, but we would argue that already there is sufficient to show that discussion with interested parties across all jurisdictions is urgently required.

Author Note

Emily Henderson, PhD, is a lawyer and legal researcher. She has practiced as a litigator in the civil courts, the Family Court and, most recently, in the criminal court as a Crown prosecutor. She co-authored the 2010 report into the situation of child witnesses in the New Zealand criminal courts. She is an Honorary Research Fellow of the Department of Psychology at Auckland University and is the current New Zealand Law Foundation International Research Fellow and a Visiting Fellow of Clare Hall, Cambridge.

Fred Seymour, PhD, is a professor and Director of the clinical psychology programme at The University of Auckland. He maintains a private practice that includes work as an expert witness in the Family Court and criminal courts in relation to child abuse allegations. Before joining Auckland University in 1988, he worked in several child and family mental health agencies. He is a former President of NZPsS, and recent member of the Psychologists Board.

Correspondence to Emily Henderson at emilyhenderson@xtra.co.nz

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Dixon, Lloyd and Brian Gill Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision RAND Institute for Civil Justice 2001

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Family Court Practice Note for Specialist Report Writers (March 2011)

Field, David, Ian Coyle, Graham Starmer, Glen Miller and Paul Wilson “Trust me: I’m an expert”: Forensic evidence and witness immunity” (2009) 41 Australian Journal of Forensic Sciences 113

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Law, Probability and Risk 205

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Henderson, Emily “Cross-examination: A Critical Examination” (PhD Thesis, Cambridge, 2001)

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Table of Cases

Arthur JS Hall v Simons [2002] 1 AC 615 (HL).

Aryan v R [2010] NZCA 57

Austin v American Association of Neurological Surgeons [2001] USCA7 296; 253 F 3d 967 (2001)

Carnahan v Coates (1990) 71 DLR (4th) 464

Commonwealth v Griffiths [2007] NSWCA 370; (2007) 245 ALR 172

D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, (2005) 223 CLR 1

Daubert v Merrell Dow Pharmaceuticals [1993] USSC 99; 509 US 579 (1993)

Deatherage v State of Washington Examining Board of Psychologists 948 P 2d 828 (1997)

Deep v College of Physicians and Surgeons of Ontario [2010] ONSC 5248

Frye v US 293 F 1013 (CADC 19

General Electric Co. v Joiner [1997] USSC 88; 522 US 136 (1997)

General Medical Council v Meadow [2006] EWCA 1390; [2007] QB 462

Harney v Police [2011] NZSC 107

Iti v R [2011] NZCA 114

James v Medical Board [2006] SASC 267

James v Medical Board of South Australia [2006] SASC 267; (2006) 95 SASR 445

Jones v Karney [2011] UKSC 13

K v K HC Auckland CIV 2003-404-6535, 11 June 2004

Kumho Tire Co v Carmichael [1999] USSC 19; 526 US 137 (1999)

Lai v Chamberlains [2006] NZSC 70; [2007] 2 NZLR 7

National Justice Campania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd’s Rep 68

R v Arthur [1981] 12 BMLR 1

R v Atkins [2009] EWCA Crim 1876; [2010] 1 Cr App R 8

R v Carter [2005] NZCA 422; (2005) 22 CRNZ 476 (CA)

R v Gardner [2004] EWCA Crim 1639

R v Hutton [2008] NZCA 126

R v Munro [2007] NZCA 510

R v Preece [1981] Crim LR 783

R v Seu CA81/05, 8 August 2005.

Re Baby X [2011] EWHC 590 (Fam)

Reynolds v Kingston (Police Services Board) [2007] ONCA 166

Signer v R [2011] NZSC 46

Sovereign Motor Inns Pty Ltd v Howarth Asia Pacific Pty Ltd [2003] NSWSC 1120

Varghese v Landau Ontario Superior Court of Justice 02-CV-230524CM2, 30 January 2004; [2004] Can LII 5084


Appendix A

Final Interview Guide for Expert Witness Project

What training or preparation had the expert before their first court appearance? What training have they had subsequently?

How well briefed are they before appearing in court? What is their role as an expert witness?

Would they accept instructions from both sides?

How competent are the jury to understand their evidence? How competent are judges?

How do they find examination in chief?

How do they find cross-examination? Do they enjoy it?

Whether they are able to relay their evidence fully and accurately through that questioning? Does cross-examination identify problems or issues in their evidence appropriately?

What cross-examination tactics do they find difficult?

Whether there are appropriately qualified people who effectively refuse to participate in the trial process as expert witnesses and why.

What are the characteristics and skills of a good expert witness?

Do those skills necessarily correspond to expertise in the witness’s own field? In their view do the courts assess the expertise of witnesses adequately?

How could we improve the current system?

What did they think of various reform options e.g.: consecutive evidence, concurrent evidence, and specialization?

Was there anything relevant or important that we hadn’t discussed?

Appendix B: Relevant Legislation


High Court Rules: Schedule 4: Code of conduct for expert witnesses

Duty to the court

Evidence of expert witness

Duty to confer

Crimes Act 1961

Section 367 Evidence and addresses

(1A) Without limiting subsection (1), the court may give an accused person leave to make an opening statement, after any opening by the prosecution and before any evidence is adduced, for the purposes only of identifying the issue or issues at the trial.

(1B) Nothing in an opening statement made under subsection (1A) limits the rights of an accused person to raise any other issue or issues at the trial.

(1C) The court may give an accused person (whether defended by counsel or not) leave to call 1 or more expert witnesses immediately after counsel for the prosecution has called 1 or more expert witnesses.

(1D) Leave under subsection (1C) overrides subsection (1), but does not affect the calling of expert or other witnesses who are not the subject of the leave, or prevent cross-examination or re-examination of any expert witness.

(2) When all the evidence (including any evidence given on cross-examination, re- examination, or in rebuttal) is concluded, counsel for the prosecution may make a closing address to the jury.
(3) After the closing address (if any) on behalf of the prosecution the accused or his counsel may make a closing address to the jury and the prosecution shall have no right of reply in any case.

Evidence Act 2006

Section 83: Ordinary way of giving evidence

(2) An affidavit or a written statement referred to in subsection (1)(b) or (c) may be given in evidence only if it—

Section 84: Examination of witnesses

(2) If a witness gives evidence in an affidavit or by reading a written statement in a courtroom, it is to be treated for the purposes of this Act as evidence given in chief.

Courts (Remote Participation) Act 2010

Section 5 General criteria for allowing use of audio-visual links

Section 6: Additional criteria for allowing use of audio-visual links in criminal proceedings

Section 8: Use of audio-visual links in criminal procedural matters

Summary Proceedings Act 1957

Section 31: Order for taking evidence of defence witness at a distance

(1A) Notwithstanding anything in this Act, any District Court Judge or Registrar on the application of the informant before the hearing, or the Court on the application of the informant at the hearing, may, with the consent of the defendant, make an order for the taking before any other District Court or before the Registrar thereof (not being a constable), of the evidence of the informant or of any witness for the prosecution, if for any reason the District Court Judge or the Registrar or the Court, as the case may be, considers it desirable or expedient that the evidence of the informant or the witness should be so taken.

(2) Evidence given in accordance with this section and with any regulations made under this Act may be tendered at the hearing as if it were given in the course thereof; and judicial notice shall be taken of the signature of any examining District Court Judge or Justice or Community Magistrate or Registrar to any deposition made pursuant to an order under this section.
(3) Where the Court of hearing considers that an application for the taking of the evidence of any defendant or witness under this section has been made for the purpose of delay or for any other improper purpose, or that there is undue delay in the taking of any such evidence, the Court may hear and determine the charge without waiting for the evidence to be so taken.
(4) Nothing in this section or in any regulations made under this Act shall limit or affect the power of the Court to compel the personal attendance of the defendant or of any witness at the hearing.

Section 32: Order for taking evidence of person about to leave country

Court or the Registrar thereof (not being a constable), of the evidence of any person, if the District Court Judge or the Registrar is satisfied that that person intends to depart from New Zealand before the hearing and that it is desirable or expedient that his evidence should be so taken.

(2) Evidence given in accordance with this section and with any regulations under this Act may be tendered at the hearing as if it were given in the course thereof; and judicial notice shall be taken of the signature of any examining District Court Judge or Justice or Community Magistrate or Registrar to any deposition made pursuant to an order under this section.

Section 33: Admission in summary proceedings of statement of person dangerously ill taken for purposes of trial of indictable offence


2013_102.jpg

Appendix C

DEPARTMENT OF PSYCHOLOGY

Faculty of Science

Building 721, Tamaki Campus Cnr Morrin & Merton Roads Glen Innes, Auckland, New Zealand

Telephone 64 9 373 7599 x86886

Facsimile 64 9 373 7902 www.psych.auckland.ac.nz

The University of Auckland Private Bag 92019

Auckland 1142, New Zealand


PARTICIPANT INFORMATION SHEET FOR EXPERT WITNESSES

To:

Project Title: Expert Witnesses Under Adversarial Examination in the New Zealand Criminal and Family Courts

Researchers : Professor Fred Seymour

Dr Emily Henderson

Researcher Information

Fred Seymour is a professor of psychology at Auckland University. He also practices as a clinical psychologist.

Emily Henderson is a criminal prosecutor at Marsden Woods in Whangarei. She is also an Honorary Research Fellow of the Auckland Psychology Department.

This project is funded by a grant from the New Zealand Law Foundation.

Aim of Research

To identify issues with the use of adversarial examination (or examination in chief and cross- examination) for expert witnesses in child abuse and neglect trials or hearings in the criminal and family courts in New Zealand; to consider whether different methods of testing expert evidence

might be usefully explored; to consider the efficacy of expert witness preparation or training programmes.

Invitation to Participate

We invite you to take part in this study. You have been selected as a potential participant on the basis of your work as an expert witness in the field of child abuse and neglect.

Participation will involve a one to two hour interview, discussing your experiences as a witness in the courts, your training (if any) to undertake the role of witness and any reflections you might have on the adversarial inquiry as a methodology for investigating expert evidence.

Interviews will be taped and transcribed.

You can choose to turn the tape off at any time during the interview.

You can withdraw your consent to have your interview transcript used in the study up until the draft report is circulated. At that point your comments on the draft will be requested and you will be invited to discuss any concerns you may have but your interview will remain part of the report.

Confidentiality Information

Your identity in this research will remain confidential. While the interviews will be transcribed by a typist, she has signed a confidentiality agreement not to release any information about the study participants. Each participant will be assigned a number by which he or she will be known. A list will be kept (separately from the transcripts) of the participants and their numbers.

No identifying information will be included in written reports or publications. If the information you provide is reported or published (for example by short quotes from the transcript of the interview) this will be done in a way that does not identify you as its source.

Participation in this study will be on an individual basis only and not in your employee role. All information will be separate and confidential from your place of employment.

All consent forms, audiotapes and interview transcripts will be kept in a secure location at Professor Fred Seymour’s office at the University. Audiotapes will be destroyed after the interviews have been transcribed. Transcripts and consent forms will be retained for 6 years, stored in the same office once the analysis is complete. Audiotapes and interview transcripts will be destroyed through the service used by the Psychology Department.

Right to Withdraw

All participants have the right to withdraw from the study at any time or remove their interview transcript at any time up until the draft report is circulated.

Contact details

If you have any queries please contact Fred Seymour on or f.seymour@auckland.ac.nz or Emily Henderson on 021 991056 or e.henderson@xtra.co.nz

For any queries regarding ethical concerns you may contact the Chair, The University of Auckland Human Participants Ethics Committee, The University of Auckland, Office of the Vice Chancellor, Private Bag 92019, Auckland 1142. Telephone 09 373-7599 extn.83711

Approved by the University of Auckland Human Participants Ethics Committee on 21 May 2012 For 3 years Until 21 May 2015 Reference Number 8075

DEPARTMENT OF PSYCHOLOGY

Faculty of Science

2013_102.jpg

Building 721, Tamaki Campus Cnr Morrin & Merton Roads Glen Innes, Auckland, New Zealand

Telephone 64 9 373 7599 x86886

Facsimile 64 9 373 7902 www.psych.auckland.ac.nz

The University of Auckland Private Bag 92019

Auckland 1142, New Zealand


PARTICIPANT INFORMATION SHEET FOR JUDGES AND LAWYERS

To:

Project Title: Expert Witnesses Under Adversarial Examination in the New Zealand Criminal and Family Courts

Researchers : Professor Fred Seymour

Dr Emily Henderson

Researcher Information

Fred Seymour is a professor of psychology at Auckland University. He also practices as a clinical psychologist.

Emily Henderson is a criminal prosecutor at Marsden Woods in Whangarei. She is also an Honorary Research Fellow of the Auckland Psychology Department.

This project is funded by a grant from the New Zealand Law Foundation.

Aim of Research

To identify issues with the use of adversarial examination (or examination in chief and cross- examination) for expert witnesses in child abuse and neglect trials or hearings in the criminal and family courts in New Zealand; to consider whether different methods of testing expert evidence might be usefully explored; to consider the efficacy of expert witness preparation or training programmes.

Invitation to Participate

We invite you to take part in this study. You have been selected as a potential participant on the basis of your work in the Criminal and/or Family Courts in matters relating to child neglect and abuse.

Participation will involve a one to two hour interview, discussing your experiences with expert witness in the courts and any reflections you might have on the adversarial inquiry as a methodology for investigating expert evidence.

Interviews will be taped and transcribed. You can choose to turn the tape off at any time during the interview.

You can withdraw your consent to have your interview transcript used in the study up until the draft report is circulated. At that point your comments on the draft will be requested and you will be invited to discuss any concerns you may have but your interview will remain part of the report.

Confidentiality Information

Your identity in this research will remain confidential. While the interviews will be transcribed by a typist, she has signed a confidentiality agreement not to release any information about the study participants.

No identifying information will be included in written reports or publications. Each participant will be assigned a number by which he or she will be known. A list will be kept (separately from the transcripts) of the participants and their numbers. If the information you provide is reported or published (for example by short quotes from the transcript of the interview) this will be done in a way that does not identify you as its source.

Participation in this study will be on an individual basis only and not in your employee role (if any). All information will be separate and confidential from your place of employment.

All consent forms, audiotapes and interview transcripts will be kept in a secure location at Professor Fred Seymour’s office at the University. Audiotapes will be destroyed after the interviews have been transcribed. Transcripts and consent forms will be retained for 6 years, stored in the same office once the analysis is complete. Audiotapes and interview transcripts will be destroyed through the service used by the Psychology Department.

Right to Withdraw

All participants have the right to withdraw from the study at any time or remove their interview transcript at any time up until the draft report is circulated.

Contact details

If you have any queries please contact Fred Seymour on or f.seymour@auckland.ac.nz or Emily Henderson on 021 991056 or e.henderson@xtra.co.nz

For any queries regarding ethical concerns you may contact the Chair, The University of Auckland Human Participants Ethics Committee, The University of Auckland, Office of the Vice Chancellor, Private Bag 92019, Auckland 1142. Telephone 09 373-7599 extn. 83711

Approved by the University of Auckland Human Participants Ethics Committee on 21 May 2012 For 3 years Until 21 May 2015 Reference Number 8075

DEPARTMENT OF PSYCHOLOGY

Faculty of Science

2013_102.jpg

Building 721, Tamaki Campus Cnr Morrin & Merton Roads Glen Innes, Auckland, New Zealand

Telephone 64 9 373 7599 x86886

Facsimile 64 9 373 7902 www.psych.auckland.ac.nz

The University of Auckland Private Bag 92019

Auckland 1142, New Zealand


PARTICIPANT CONSENT FORM FOR JUDGES AND LAWYERS

This form will be kept for a period of six years

To:

Project Title: Expert Witnesses Under Adversarial Examination in the New Zealand Criminal and Family Courts

Researchers: Professor Fred Seymour and Dr Emily Henderson

Information

Your consent form will be kept in a secure location at Fred Seymour’s office at the University for 6 years and will be destroyed through the service used by the Psychology Department. All audiotapes and interview transcripts will be kept in a separate secure location at the same office at the University. Audiotapes will be destroyed after the interviews have been transcribed. Transcripts will be retained for 6 years, stored in the same office once the researchers have completed the analyses. Audiotapes and interview transcripts will be destroyed through the service used by the Psychology Department.

Consent statements


  1. I have read the Participant Information Sheet, have understood the nature of the research and why I have been selected. I have had the opportunity to ask questions and have them answered to my satisfaction.
  2. I agree to take part in this research.
  3. I agree that interviews will be recorded on audiotape and transcribed by a typist who has signed a confidentiality agreement.
  1. I understand that all audiotapes will be wiped on transcription and that interview transcripts will be kept in secure locations at Professor Fred Seymour’s office at the University and that all transcripts will be retained for 6 years, stored in that office once the researchers have completed the analyses, after which they will be destroyed by a service used by the Department.
  2. I understand that I am free to withdraw from the research and remove my interview transcript at any time without giving any reason up until the draft report is circulated.

Signature of participant:

Name and Date:

Contact details

If you have any queries please contact Fred Seymour on or f.seymour@auckland.ac.nz or Emily Henderson on 021 991056 or e.henderson@xtra.co.nz

Approved by the University of Auckland Human Participants Ethics Committee on 21 May 2012 For 3 years Until 21 May 2015 Reference Number 8075

DEPARTMENT OF PSYCHOLOGY

Faculty of Science

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Building 721, Tamaki Campus Cnr Morrin & Merton Roads Glen Innes, Auckland, New Zealand

Telephone 64 9 373 7599 x86886

Facsimile 64 9 373 7902 www.psych.auckland.ac.nz

The University of Auckland Private Bag 92019

Auckland 1142, New Zealand


PARTICIPANT CONSENT FORM FOR EXPERT WITNESSES

This form will be kept for a period of six years

To:

Project Title: Expert Witnesses Under Adversarial Examination in the New Zealand Criminal and Family Courts

Researchers: Professor Fred Seymour and Dr Emily Henderson

Information

Your consent form will be kept in a secure location at Fred Seymour’s office at the University for 6 years and will be destroyed through the service used by the Psychology Department. All audiotapes and interview transcripts will be kept in a separate secure location at the same office at the University. Audiotapes will be destroyed after the interviews have been transcribed. Transcripts will be retained for 6 years, stored in the same office once the researchers have completed the analyses. Audiotapes and interview transcripts will be destroyed through the service used by the Psychology Department.

Consent statements


  1. I have read the Participant Information Sheet, have understood the nature of the research and why I have been selected. I have had the opportunity to ask questions and have them answered to my satisfaction.
  2. I agree to take part in this research.
  3. I agree that interviews will be recorded on audiotape and transcribed by a typist who has signed a confidentiality agreement.
  1. I understand that all audiotapes will be wiped on transcription and that interview transcripts will be kept in secure locations at Professor Fred Seymour’s office at the University and that all transcripts will be retained for 6 years, stored in that office once the researchers have completed the analyses, after which they will be destroyed by a service used by the Department.
  2. I understand that I am free to withdraw from the research and remove my interview transcript at any time without giving any reason up until the draft report is circulated.

Signature of participant:

Name and Date:

Contact details

If you have any queries please contact Fred Seymour on or f.seymour@auckland.ac.nz or Emily Henderson on 021 991056 or e.henderson@xtra.co.nz

Approved by the University of Auckland Human Participants Ethics Committee on 21 May 2012 For 3 years Until 21 May 2015 Reference Number 8075


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