WITHOUT SUFFICIENT safeguards in place there is a danger that miscarriages of justice may take place in criminal trials that turn on expert evidence, according to the Law Reform Commission.
It referred to the controversial case in the UK of Sally Clark, who was wrongly convicted of murdering her babies largely on the since discredited expert evidence of Prof Roy Meadow.
The warning comes in the Law Reform Commission’s Consultation Paper on Expert Evidence, to be launched this evening by Ms Justice Fidelma Macken.
In a serious criminal trial before a judge and jury, the issue of innocence or guilt may turn on a complex technical issue such as DNA evidence, mobile phone-tracing evidence or the interpretation of medical evidence, says the paper.
In civil trials, usually decided by a judge alone, the ultimate issue may also turn on a technical issue, such as whether a particular machine complied with safety standards.
In both types of trial the benefits of allowing expert evidence and expert witnesses assist the court in making findings of fact has long been recognised. Increased specialisation of knowledge in society has led to an exponential growth in the number of requests to enlist the aid of experts.
However, it says there are challenges in the use of such evidence. In relation to DNA evidence, for example, there may be some who mistrust scientific evidence. On the other hand, there may be those who take the view that the expert must always be right because they are always right on TV.
The consultation paper also points to international studies showing that courts sometimes hear not the most “expert” opinions but those most favourable to the party paying the experts. In the UK concern has been expressed that the expert, instead of playing an independent role, had become “a very effective weapon” in a party’s arsenal of tactics.
In its paper, the commission makes 40 provisional recommendations to deal with such problems. It recommends that the term “expert” should be defined, and it invites submissions on whether, for example, experience-only based knowledge should be sufficient or whether formal, professional qualifications, study or training is necessary to be considered an expert.
It also recommends that there should be detailed guidelines containing a list of factors which can be used to help the court assess the reliability of expert evidence, along with a formal guidance code which would outline the duties owed by expert witnesses.
However, it recommends that a mandatory regulatory regime for expert witnesses should not be introduced, while recommending that the professional bodies should be encouraged to introduce their own disciplinary process for professionals who wish to act as expert witnesses.
A final report will be published by the commission following a consultation period. The deadline for submissions is April 30th.