Charles Smith and Expert Testimony

How to get just the facts

If we are to avoid miscarriages of justice like those associated with forensic pathologist Charles Smith, we can't have expert witnesses testifying 'for the defence' or 'for the Crown'

James Morton

Ottawa Citizen Special

February, 2008

 

Expert witnesses seem a lot less expert these days. Last week we were reminded daily of the miscarriages of justice caused by forensic pathologist Charles Smith -- the many parents and caregivers charged and some found guilty of murdering children, the scores of lives ruined, and families destroyed.

And in August, the Ontario Court of Appeal said that one of its main reasons for acquitting Steven Truscott had to do with the testimony of John Penistan, the pathologist in that long-ago case of rape and murder. Dr. Penistan's official autopsy report stated that 12-year-old Lynne Harper had died soon after Steven Truscott had been seen giving her a ride on his bike, at a time when he would have been by far the most likely killer.

But in recent years researchers have found two earlier copies of the same report form, one of them filled out during the autopsy, both placing the girl's time of death much later, when Mr. Truscott absolutely could not have been the killer. Said the Court: "(The) nature of the changes in his opinion leaves Dr. Penistan's evidence reasonably open to the allegation that his opinion shifted to coincide with the Crown's case against the appellant."

That sentence strikes at the heart of the expert witness problem, and implies an elegantly simple solution.

First, to put things in some perspective, one reason the wrongful convictions associated with Charles Smith have made so many headlines is that such cases are rare in Canada. (Truscott was a rarity, too, but he made headlines for other reasons.) Our adversary system, where teams of prosecution and defence lawyers each put their case as strongly as possible, is meant to ensure that no evidentiary stone goes unturned and that impressive but weak evidence does not lead to false verdicts. Usually that system works.

When it does not, though, the human costs can be horrific: the Grade 6 student wrongly accused of shaking a 16-month-old to death; the mother jailed for two years for stabbing her young daughter to death with scissors when in fact the girl had been mauled by a pit bull; the uncle wrongly convicted of sodomizing and killing his four-year-old niece and only released from prison after 12 years. And there will be more; the Charles Smith files are not closed.

Still, as I say, such cases are rare. One reason is that Canadian courts are relatively conservative about expert testimony. We allow only experts with serious credentials to testify, and then only when their expertise is essential to understanding a case. In Thunder Bay recently, for instance, a judge denied defence counsel permission to call a psychologist regarding false confessions, on the grounds that the psychologist's testimony was something the jury could figure out by itself.

Serious credentials, absolute necessity, those are high bars. So where does the expert witness system break down? In the words of Watergate's Deep Throat: Follow the money.

Despite their implied objectivity, expert witnesses -- who are, after all, paid for their time and services -- are called to court by either the prosecution or the defence. Where one side or the other has significantly more money, it will more likely find an expert who will say what it wants. This is not because the expert will intentionally mislead the court, but both sides have a choice of experts to call, each looks for the experts most likely to favour its position, and the side with the deeper pockets has the wider choice. The fact that such witnesses are routinely described as "defence" or "prosecution" experts indicates the problem.

The simple solution, it seems to me, is to make the expert witness system work the way it purports to work already, to recognize that expert witnesses are expected to offer impartial, unbiased views, and have the court itself call them in, rather than the parties to a case. The courts could establish a roster of respected experts and either the Crown or the accused could request that the judge appoint one. But the judge would choose.

Experts would be required to know their obligations to the court -- to disclose any conflicts of interest, for example, and recuse themselves in such cases. More importantly, they would have to detach themselves from issues of guilt or innocence. (Pathologists already step over the line, for example, when they state that "this was murder"; that is not their conclusion to draw.) Ideally, expert witnesses would not talk to either party in a case outside the courtroom, defence or prosecution, including the police. Certainly they should not know anyone's "theory of the case."

As to who would pay, the fact is that in most criminal proceedings, anyway, the government already pays the experts, either through the attorney general's office or Legal Aid. All that would change is who hires the expert and who signs the cheque.

In court, technical expertise should not come with a viewpoint. The courtroom "battle of experts" was never a good idea. It's time we put it to rest.