Expert Witness 101 – inform, not advocate

Andrew L. Urban.

Eve Ash, the Melbourne filmmaker whose documentary, Shadow of Doubt, opened a Pandora’s Box on the Sue Neill-Fraser (many say wrongful) murder conviction, has produced a 4-part eLearning course, Giving Expert Evidence, which has now (July 23, 2020) been released on OPENSESAME.com an acclaimed online learning library based in USA. It begins by urging expert witnesses not to advocate but inform. Oh, and beware of ego … 

It would be wrong to imagine that Giving Expert Evidence is only suitable for the ‘beginner expert witness’ in any field of science. Legal history shows us that expert witnesses with years of experience still fail some of the essential requirements of presenting their specialist expertise in court. Lesson 1 begins with the reminder that an expert witness is – or should be – impartial, objective and independent. An expert witness is not an advocate – even though (and especially) in most cases where an expert witness is called by the prosecution.

An example of an expert witness advocating is given with the case of Gordon Wood, convicted of murder by throwing his fiancee off the cliff at The Gap in Sydney. The Associate Professor called by the Crown to give evidence was found in Wood’s successful appeal not to have been qualified to give expert evidence in the field of science on which he gave testimony and was rebuked for having become an advocate for the police investigation and prosecution arguments, made clear in correspondence.

Some forensic experts have spectacularly failed to deliver the expertise a criminal trial requires for justice to be served. In Australia, the first example that springs to mind is the Lindy Chamberlain case. (The prosecution relied on expert forensic testimony that identified as blood spatter the material found splashed under the family car’s dashboard. Lindy had cut her baby’s throat with a pair of scissors, claimed the prosecution … It was six years after the baby’s death that more thorough forensic tests were undertaken. The material turned out to be sound deadener.)

This expertly produced course (by Ash’s 7 Dimensions in association with the University of Victoria) delivers a mix of clearly written text and several video interviews with suitably qualified professionals* from various areas of the law, academia and forensics.

Ash first produced 22 videos for Victoria University, then this year, closed down by the pandemic, developed those videos into the 4 powerful courses, while legal academic Dr Bob Moles of Flinders University added icing to the cake after reviewing them – adding extra information.

Giving Expert Evidence 01 – Credibility and Accountability
Giving Expert Evidence 02 – Preparation and Reports
Giving Expert Evidence 03 – Mistakes and Miscarriages Of Justice
Giving Expert Evidence 04 – Effective Presentation in Court

Key features:
Video interviews, dramatised case studies, recap activities, supplemental resources and quiz post assessments.

All of it is pertinent and relevant, such as the primer on the ‘basis rule’ – admissibility of evidence:

  1. The conclusions of the expert must be within the expert’s area of expertise – and must be substantially based upon the expert’s study, training and experience.
  2. The facts upon which the opinion is based have been (or will be) proven by properly admissible evidence in the proceedings; evidence of those facts may well be given by the expert providing the opinion. It may well consist of tests conducted or examinations undertaken by the expert.
  3. There must be properly validated scientific principles which link the facts to the conclusion.

And: Any opinion based upon intuitions, subjective beliefs, speculation or unspecified ‘experience’ is inadmissible.

In Part 3, the course tackles mistakes and miscarriages of justice in relation to expert evidence:

  • Miscarriages of justice and wrongful convictions in the USA, Canada, the UK and Australia resulting from flawed expert evidence (thanks Bob Moles).
  • The ways some miscarriages of justice occurred as a result of mistakes during investigations and subsequent court proceedings.
  • Avoiding mistakes such as:
  • Downplaying evidence that undermines or contradicts your opinion.
  • Acting outside your expertise; being unprepared.
  • Reacting inappropriately to cross-examination.
  • Verbose, unclear ways of presenting evidence.

One case cited is that of a shaken baby, in which the expert witness testimony was simply not understood properly by anyone involved in the case. The resulting murder conviction was later overturned on appeal, after the testimony was carefully re-assessed.

As one interviewee says, total reliance on forensic evidence is dangerous; it is just one tool that can provide some part or parts of the total evidence pool.

* Interviewees (with their titles at the time of the interview):

  • The Hon Frank Vincent AO QC, Provost – Sir Zelman Cowen Centre, Former Supreme Court Judge
  • David Wells, Associate Professor and Head of Forensic Medicine, Victoria Institute of Forensic Medicine
  • Barbara Etter, Legal consultant, Former Adjunct Professor, School of Law and Justice, Edith Cowan University
  • Stephen Cordner, Professor of Forensic Medicine, Monash University, Director of Victorian Institute of Forensic Medicine
  • David Denton SC, Adjunct Professor of Law, Victoria University
  • Sam Norton, Partner, Robert Stary Lawyers
  • Karl Kent, Director, Victoria Police Forensic Services Department
  • Anne Smith, Medical Director, Victorian Forensic Paediatric Medical Service

NOTE: Ash also co-produced and presented Undercurrent, a 6-part investigation into the Sue Neill-Fraser case, screened on the 7 Network in 2019.

7 Dimensions
7 Dimensions is a world leader in the production of creative learning resources that engage and educate. Led by Melbourne based psychologist and documentarian Eve Ash, the company has produced over 700 videos in USA and Australia, on business topics, management and communication skills along with a range of personal development and English language programs. 7D has won over 160 awards for creativity and excellence.

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3 Responses to Expert Witness 101 – inform, not advocate

  1. owen allen says:

    Andrew this contribution gives weight to what I just wrote.
    The nod nod wink wink scenario.
    Backing one another is more important than truth and justice.
    I have previously questioned whether Chief Justice Blow is a fit and proper person to be on the bench and the chief.
    Why, from a comment he made; ” I do not feel lenient today.”
    I put to Australia, when is Justice about How a Judge Feels.
    His wife burnt his toast this morning, or the poached eggs were over done.
    He is angry before he goes to court, and wham the victim is in prison.
    For stealing library books. But if the toast and eggs are great he lets drug dealers walk.
    I made up the eggs and toast but not the prison and walking. Just an egg, of a scenario.

  2. Williambtm says:

    Given that the former DPP Tim Ellis and the judge presiding, Justice Alan Blow surely
    must have realized that the entire case against Sue Neill-Fraser was little other than heavily biased power of suggestion.
    Having ascertained this fact, how then can one rely on the amalgam of guesswork circumstantial evidence?
    Too many people think that the Justice system in Tasmania is beyond reproach, I have concluded the necessary research to establish how wrong that belief is.
    This same DPP had discharged a 2006 Supreme Court case matter that had consisted of the accused being charged by the Detective Sergeant investigating officer ran into an enormous amount of money by theft and the same charges relating to the personal possessions, thus there were 15 charges of theft, then a charge of fraud, and a charge of forgery, that lot topped off with a charge of attempted murder.

    The case was to be discharged by way of his wife (as the President of Tasmania’s Guardianship Administration Board) proffering a file of evidence in a manner not relevant to this case matter, yet it was such that the above-described President had become a hostile witness to the Crown. [Can anyone detect the conflict of interests in this case matter?]
    The investigating Detective Sergeant had been diligent and effective in his pursuits so much so that it went on to confirm the thefts.
    Now, rather amusingly all charges against the accused were absolved by the actual case matter discharge, which had put an end to this case matter and permitted the accused to walk free from court.

    Despite this case being discharged back in 2006, the large amount of 160 collectible solid Gold coins which today would be quite valuable, are still missing as they had not been pursued at any stage by the Tasmanian police.
    This case matter could be best described as a wrongful non-conviction by the former DPP.

    • Garry Stannus says:

      I was interested in your comment, William, and found information on the matter that you were referring to at https://www.opentrial.info/index.php?title=Fleecing_the_Elderly_in_Tasmania.

      Thank you for that. I remember the days before we had DPPs. Damian Bugg was Tasmania’s first, and he earned wide respect. What troubles me is that by creating these DPP fiefdoms, it is no longer guaranteed that a person charged with an indictable offence will be prosecuted. Nowadays all too often we hear that a trial will not be held due to there not being enough evidence to secure a conviction and that the DPP has decided not to pursue the case. In some cases, I sometimes find myself wishing that such DPP discretion did not exist.

      Of course, I balance this with the other side of the coin, and am mindful of cases such as Sue Neill-Fraser’s, where in the absence of direct evidence, she was arrested by police, then tried, convicted and remains jailed through the efforts of a DPP who was all too willing to take, what was, in my view a shallow case, to court.

      Are some expert witnesses ‘guns for hire’? My own experience is that, yes, they sometimes are. Once, having made a Workers Comp. claim for a back condition, I was examined by an Orthopaedic Consultant who’d been flown in from NZ to examine me on behalf of my employer (in the absence of available local experts). His opinion, supporting my employer’s rejection of my claim, was given without understanding Tasmanian law, that it, that the aggravation of a prior existing condition can occur during employment and is compensable. Finding myself called into a Workers Compensation Tribunal, my self-representation and my doctor’s advice was insufficient to compete with that of the ‘expert witness’. To have had any hope of success, I would have to have had my own ‘expert witness’ in the tribunal with me. Now where on earth would I have been able to get such a person? And pay for them?

      Paul Turner, Assistant Director of the Office of Public Prosecutions (Civil), had no such financial difficulties. The State of Tasmania was paying him to represent my employer, which itself had the resources to organise a FIFO Consultant, hire an examination room and so forth. The chap who examined me, in contravention of then State Law, did not reside in Australia and was not on the Tasmanian register of Medical Practitioners. But, guess what! After an adjournment, they got the Medical Board to write a letter to the effect that anachronistically he ‘was known to them’ or some such thing.

      So, to conclude, William, thank you for your comment, I thank Andrew too for posting this article and I express admiration for Eve’s initiative. Incidentally, one of the witnesses called to give expert evidence to the Sue Neill-Fraser application-for-leave-to-appeal hearings, had apparently produced two reports concerning:

      -Trace Blood Analysis
      and
      -State of Ropes & Winches & the Police Winching Test.

      I recall the DPP, Daryl Coates objected to the tendering of the ‘Ropes, Winches and Winching’ report on the grounds that it hadn’t been borne out that the witness was an expert for the opinions which he gave in that second report. During XNN of the witness, the witness said that nothing specific to his training or experience led him to give a particular opinion about how many wraps of rope around a winch were needed to be able to lift [heavy objects] out of boats.

      Mr Coates, in submissions, brought up the admissibility of that winching evidence, saying that the witness “stated in evidence there was nothing about his expertise or training in respect to the evidence.” Justice Brett does not refer to this matter in his judgement decision to grant the leave application. That might be because other material (i.e. the 25Feb2019 statement) was sufficient for him to grant leave to appeal, without having to decide on a number of other matters that had been put to him in submissions. Who knows?

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