The Changing Role Of The Experts

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The Changing Role of the Expert Witness by Justice Ian Binnie∗

In theory, the expert witness is called upon to provide objective assistance to the court. In practice, at least in our jurisdiction, the expert has traditionally been expected by members of the bar to say whatever can reasonably be said on behalf of the client who provided the retainer. One expert, made cynical by his exposure to the legal profession, suggested that in his experience expert witnesses are

chosen not for their wisdom or sagacity but for their willingness to say in the simplest, clearest, least tentative way what a particular side wants said.1

The tension between the theory and the reality of expert testimony has resulted in courts taking an increasingly aggressive role in trying to identify and exclude “junk” testimony, or, in the alternative at least making life more difficult for dodgy purveyors of the serious arts and sciences. Many experts welcome the change. They have long been uncomfortable with the role of cheerleader for one side, or as it was voiced by a reputable historian chastened by his experience in the witness box:

It is not that we were engaged in formulating lies; there was nothing as crude and naive as that. But we were using facts, emphasizing facts, bearing down on facts, sliding off facts, quietly ignoring facts and, above all, interpreting facts in a way to do what Marshall said we had to do - ‘to get by those boys down there’.2

The use and misuse of experts is in part a byproduct of the adversarial system. The theory has always been that a trial of fiercely contending positions will ultimately reveal the truth, a theory not unlike Adam Smith’s vision of the Invisible Hand, which guides its warring participants towards production of the optimum result.3 In courtrooms, as well as in the investment banking business, the thought has belatedly occurred to people that the Invisible Hand has its limitations as a control mechanism. As a result a number of reforms have been tried, with mixed success.

I. THE JUDGE AS GATEKEEPER

A good example is the “gatekeeper” role thrust on judges to exclude dubious expertise from the courtroom rather than letting everything go in subject to arguments about “weight”. This reform is generally attributed to the decision of the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) where the

∗ Of the Supreme Court of Canada. I would like to acknowledge the valued assistance of Jean-

Michel Boudreau, a former law clerk, who did much helpful research on these matters. 1 J. Morgan Kousser, “Are Expert Witnesses Whores? Reflections on Objectivity in Scholarship

and Expert Witnessing” (Winter 1984) 6 The Public Historian 5. 2 Paul Soifer, “The Litigation Historian: Objectivity, Responsibility and Sources” (Spring 1983) 5

The Public Historian 47 at 52 citing Ernest R. May, Lessons of the Past: The Use and Misuse of History in American Foreign Policy (New York: Oxford University Press, 1973) at p. 189.

3 See Kousser, footnote 2 at p. 15.

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Court suggested four non-exclusive factors that could be considered when assessing the reliability of scientific evidence, namely (1) whether the theory or technique can be used and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error (“falsifiability”) or the existence of standards; and, (4) whether the theory or technique used has been generally accepted (p. 594). A fifth criteria, probably too obvious to belabour, is that the expert should stick within the boundaries of his or her expertise.

In a subsequent case the U.S. Supreme Court extended the Daubert approach to non-scientific expert evidence when to do so would be helpful in determining the reliability of any sort of expert testimony.4 A similar approach is followed in Canada.5

Requiring judges who possess the usual liberal arts background to understand science and technology (or financial derivatives or credit swaps for that matter) rather than merely listen to someone talk about these things has proven to be an uphill battle.

In 2001, the RAND Institute for Civil Justice issued a report analyzing trends in 399 U.S. federal district court opinions issued between January 1980 and June 1999.6 Overall, the study showed there was a significant rise in the proportion of evidence excluded, which suggested the “gatekeeper” technique has had some success in keeping out the worst of junk science. However, another study conducted by the Federal Judicial Centre concerning the impact of Daubert found that only about 18% of judges who excluded evidence did so based on a finding that the methods and principles of the expert were unreliable.7 It seems U.S. judges rarely discuss the Daubert criteria. Their concerns about general acceptance, peer review and insufficient testing of the methodology served to exclude testimony less than 8% of the time. Falsifiability and error rates were discussed in less than 2% of the cases studied. Interestingly, most judges simply announced that the evidence was “not relevant, the witness was not qualified, or the testimony would not have assisted the trier of fact.” Other U.S. studies are to similar effect.8

I am not aware of any similarly broad based studies done in Canada. Anecdotally, however, the conventional wisdom is that judges here are equally reluctant to stop “expert” evidence at “the gate”. Undoubtedly, the ever-present prospect of a appeal may lead some judges to err on the side of admitting borderline evidence, but another difficulty may be that the “gatekeeper” function requires judges to understand the technical basis of the evidence before deciding whether or not to exclude it. Professor Susan Haack writes that she is:

4 Kumho Tire Co. V. Carmichael, 526 U.S. 137 (1999); see also General Electric Co. v. Joiner, 522

U.S. 136 (1997). 5 R. v. Mohan, [1994] 2 S.C.R. 9; R. v. J.-L.J., [2000] 2 S.C.R. 60. 6 L. Dixon and B. Gill, “Changes in the Standards for Admitting Expert Evidence in Federal Civil

Cases Since the Daubert Decision” (September, 2002) 8 Psych. Publ. Pol. and L. 7 C. Krafta, M.A. Dunn, M.T. Johnson, J.S. Cecil and D. Miletich, “Judge and Attorney

Experiences, Practices and Concerns Regarding Expert Testimony in Federal Civil Trials” (2002) 8 Psychol. Pub. Pol’y & L. 309.

8 See e.g. J.L. Groscup, S.D. Penrod, C.A. Studebaker, M.T. Huss and K.M. O’Neil, “The Effects of Daubert on the Admissibility of Expert Testimony in State and Federal Criminal Cases” (2002) 8 Psychol. Pub. Pol’y & L. 339; E.K. Cheng and A.H. Yoon, “Does Frye or Daubert matter? A Study of Scientific Admissibility Standards” (2005) 91 Va. L. Rev. 471.

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... a little worried about the danger of giving judges the false impression that they are qualified to make subtle scientific determinations, when it is hardly realistic to expect that a few hours in a science seminar will transform judges into scientists competent to make subtle and sophisticated scientific judgments – any more than a few hours in a legal seminar could transform scientists into judges competent to make subtle and sophisticated legal determinations.9

I suggest that the problem is as much and probably more frequently that the judge suffers from a crisis of confidence rather than an excess of it.

II. A CLASH OF PROFESSIONAL CULTURES

Many experts are aghast that the courts are required to classify science (and other areas of expertise) as either “reliable” or “junk”, whereas experts are inclined to believe that reliability is better conceived of as a continuum. As one of our learned Ontario judges put it:

There is a continuum of reliability in matters of science from near certainty in physical sciences to the far end of the spectrum inhabited by junk science and opinion akin to sorcery or magic.10

A good example of failure in the gatekeeping function is R. v. Dimitrov (2003) 68 OR (3d) 641 (Ont. C.A.), where a trial judge allowed the Crown to lead identification evidence described as “barefoot morphology”, in which an “expert” purports to identify suspects by the imprint of his or her feet (socks or no socks) inside shoes or boots, despite the lack of any serious testing of the methodology, peer review, established criteria or error rates.

The reality is that reliability is never addressed as an abstract proposition but is always in relation to the potential effect of the evidence on the outcome of the case. This presupposes that reliability is a question of degree and that the required threshold will be assessed relative to the circumstances of a particular case. Evidence which, in all likelihood, would have a considerable effect on the disposition of the case ought to be required to meet a greater reliability threshold in order to be admitted. In Dimitrov, for example, the suspect evidence of “barefoot morphology” was critical to the identification of the alleged murderer and ought to have been stopped at the gate. Its prejudice overwhelmingly outweighed any probative value. It is unfair (and too easy) for a trial judge simply to say, “let the jury decide if this stuff makes any sense”.

The problem for the gatekeeper is to assess how far along that continuum of reliability the evidence has to proceed before reaching the tipping point of admissibility. As observed by Chief Justice Rehnquist, dissenting in Daubert:

I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its “falsifiability”, and I suspect some of them will be, too.11

9 See Susan Haack, “Trial and Error: The Supreme Court’s philosophy of Science” in American

Journal of Public Health S66, reproduced in (2006) The International Society of Barristers Quarterly 376 at p. 378.

10 R. v. J.E.T. [1994] O.J. No. 3067 per Hill J., at para. 75. 11 Daubert at 601. On the issue of “Falsifiability”, one study claimed that of 400 judges interviewed,

only 6% had a clear understanding of the concept, while only 4% really grasped the notion of error rates,


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The scepticism experienced by many experts about the judiciary’s apparent binary view of reliability – the evidence is either admitted or it is excluded – is matched by their distaste for the necessity of reaching a settled conclusion (at least for the purposes of the lawsuit) upon a matter of expert controversy which in their view is far from settled. This distaste is not limited to scientists, and was noted by the trial judge in a major Canadian aboriginal rights case who expressed some sympathy for historians made wretched on the wheel of litigation:

...historical facts are always open to dispute and revision and history is frequently being rewritten. Testimony in litigation, on the other hand, once admitted into evidence and interpreted by a court, becomes fixed inter-partes even through the same evidence out of the context of the litigation could, as an intellectual exercise, be given a different interpretation by subsequent scholars or upon other facts emerging to change the context... . [M]y answer to ... [this] submission is simply that we legal people have our own discipline and I think we must stick with it.12

Even less sympathetic to experts was the view expressed by Mr. Justice Muldoon of the Federal Court of Canada in delivering judgment in Unilever PLC v. Procter & Gamble Inc. (1993), C.P.R. (3rd) 479, at pp. 488-89 dealing with a patent dispute that, after several weeks of largely expert evidence, he professed not to have understood at all:

Expert witnesses - called because, one supposes, of their eminence in the chemical science in which they proudly purport to be expert - are a large hindrance rather than much help because, of course, they are paid to contradict the eminent scientists on the opposite side ... A judge unschooled in the arcane subject is at difficulty to know which of the disparate, solemnly mouthed and hotly contended ‘scientific verities’ is, or are, plausible. Is the eminent scientific expert with the shifty eyes and poor demeanour the one whose ‘scientific verities’ are not credible? Cross examination is said to be the great engine for getting at the truth, but when the unschooled judge cannot perceive the truth, if he or she ever hears it, among all the chemical or other scientific baffle gab, is it not a solemn exercise in silliness?

Stripped of its colourful language, Justice Muldoon makes an important point: by what criteria do trial judges really assess expert testimony? Is it based on what is said or how it is said or who says it?

III. THROUGH THE GATE IS ONLY THE BEGINNING

Junk science is sometimes easier to detect than “real science” incompetently presented. In Ontario we have recently had the scandal of a string of wrongful convictions judged by a judicial inquiry to be largely the fault of a crusading Crown pathologist by the name of Dr. Charles Smith. The inquiry, conducted by Justice Stephen Goudge of the Ontario Court of Appeal, found that Dr. Smith was poorly trained,

see S. Gatowski, S. Dobbin, J.T. Richardson, G. Ginsburg, M. Merlino and V. Dahir, “Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post Daubert World” (2001) 25 Law and Human Behaviour 433. But note, D.S. Caudill and L.S. LaRue “Why Judges Applying the Daubert Trilogy Need to Know About the Social, Institutional, and Rhetorical – and not just the Methodological – Aspects of Science”, (December 2003) 45 B.C. L. Rev. 1 at 8 are highly critical of this study. They think that the study asked the wrong questions and that the methodology was flawed.

12 Delgamuukw v. British Columbia (1987), 40 D.L.R. (4th) 685, at pp. 689-90


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chronically disorganized, arrogant and incompetent13, yet his overbearing expert testimony ran largely unchecked in the Ontario courts for over a decade. As a result of his inquiry Justice Goudge recommended that 142 of the cases in which Dr. Smith testified should be reviewed to investigate potential errors and miscarriages of justice. In one case a mother was committed to trial charged with murder for allegedly stabbing her daughter repeatedly with a knife. The “stab wounds” were later shown to be the result of a savage attack by a pit bull terrier, as the mother had repeatedly protested.14 In another case a man spent 12 years in prison for allegedly strangling and sexually assaulting his niece, based on Dr. Smith’s evidence, which Dr. Smith later recanted (prompted by an independent investigation by outside experts who rejected his conclusions) and for which he belatedly apologized. In neither of these cases did the trial process, of which the legal community is so proud, succeed in exposing the quackery of the expert testimony.15

Another remarkable instance of the potential for the miscarriage of justice created by careless science is the wrongful conviction of Guy Paul Morin. On December 31, 1984, the body of nine year old Christine Jessop was found in a field east of Toronto. She had been missing for three months. The autopsy determined that she had been sexually assaulted and died from multiple stab wounds to the chest. Almost four months later, Mr. Morin, a next-door neighbour, was arrested and tried for her murder. At his second trial in July 1992, Mr. Morin was convicted. Eventually in 1995, DNA typing, introduced as fresh evidence before the Ontario Court of Appeal, caused the Crown to concede that Mr. Morin was innocent of Christine Jessop’s murder.

Two pieces of forensic evidence had made a major contribution to Mr. Morin’s conviction. First, a single dark hair was found on Christine Jessop’s body embedded in skin tissue and her necklace. This “necklace hair”, as it came to be known, was thought to belong to the killer. Secondly, fibers were gathered from Mr. Morin’s car and it was submitted by the Crown that these fibers “matched” Christine Jessop’s clothing, therefore suggesting that she was quite possibly transported in that vehicle from the point of abduction to the location where she was murdered. The fiber evidence tendered by the Crown at the second trial was supposedly based on a study entitled The Significance of Fibers Found on Car Seats conducted by two respected English forensic scientists, Roger Cook and Graham Jackson.

Following Mr. Morin’s eventual exoneration by DNA evidence16, the government of Ontario established the Kaufman Inquiry, presided over by a retired judge of the Quebec Court of Appeal, which heard from one of the co-authors of the fiber study, Roger Cook. He testified that the fiber examinations performed in Mr. Morin’s case were “unusual,

13 Stephen T. Goudge, Inquiry into Pediatric Pathology in Ontario: Report, Vol. 1: Executive

Summary (Toronto: Ontario Minister of the Attorney General, 2008), at pp. 16-18. 14 Goudge Report, Executive Summary, at p. 26. 15 Goudge Report, Executive Summary, at p. 5. 16 Earlier attempts at typing the DNA of blood and semen stains found on Christine Jessop’s

underpants had failed repeatedly between 1988 and 1991. Due to prolonged exposure to the elements, the samples had degraded and the method used at the time was not sufficiently developed to obtain conclusive results. On January 19, 1995, three scientists (one appointed by the Crown, one appointed by the defence and the third by the other two) were successful in typing the DNA from the deteriorated sample and concluded that the sperm recovered from the underpants could not have originated from Guy Paul Morin [Kaufman 79]. With the consent of both parties, these findings were presented as fresh evidence to the Court of Appeal and resulted in Mr. Morin’s acquittal.


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inappropriate and dangerous”.17 The Commissioner, The Honourable Fred Kaufman, concluded that the study was “seriously misused” and “likely misled the jury”.18 Properly understood, the study had no relevance at all to the Morin situation. Since the Morin and Jessop families were neighbours, some innocent transfer of fibers was to be expected. In fact, the Kaufman Report stated that the fiber similarities, even if they had not been the product of contamination (which they were), “proved nothing”.19

Similarly, forensic evidence based on the necklace hair only showed the Mr. Morin could not be positively excluded as the source of the hair. In his recommendations, the Commissioner declared that since such evidence was “unlikely to have sufficient probative value to justify its reception at a criminal trial as circumstantial evidence of guilt”, trial judges should undertake a “more critical analysis of its admissibility”20. Commissioner Kaufman concluded that:

There is no doubt that their hair and fiber evidence was crucial to the decision to arrest Guy Paul Morin; its presentation to the jury at the second trial undoubtedly contributed to Mr. Morin’s wrongful conviction.21

It seems evident that if the Courts are to continue to offer themselves as a credible source of dispute resolution, the traditional rather amateurish way of receiving and assessing expert evidence will have to be modified and improved.

IV. THE TEST FOR ADMISSIBILITY

The legal framework for the reception of expert evidence is fairly straight forward and ought to be workable. In this country the criteria are relevance, reliability and necessity measured against the counterweights of time, prejudice and confusion.22 Evidence is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence.23 This, taken alone, provides a fairly low threshold, but in the case of expert evidence (at least) is qualified by the rule that evidence whose prejudice exceeds its probative value should be excluded.

Relevance presupposes reliability, as “unreliable” expert evidence advances nothing except confusion. The expert evidence in question must be necessary “in the sense that it provides information, ‘which is likely to be outside the experience and knowledge of a judge or jury’, . . . the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature”. This calls for a cost-benefit analysis to determine “whether its value is worth what it costs” in terms of its impact on the trial process. In some cases expert evidence of peripheral value has consumed trial time vastly disproportionate to its usefulness.

17 Kaufman, Fred, The Commission on Proceedings Involving Guy Paul Morin: Report,

Recommendations (Toronto, Ontario Minister of the Attorney General, 1998), at p. 111. 18 Kaufman, at p. 119. 19 Kaufman, at p. 93. 20 Kaufman, at p. 312. 21 Kaufman, at p. 83. 22 R. v. Mohan, [1994] 2 S.C.R. 9, R. v. J.-L.J., [2002] 2 S.C.R. 600, R.J. Delisle, “The Admissibility

of Expert Evidence: A New Caution Base on General Principles” (1994), 29 C.R. (4th) 267. 23 J.-L.J., supra note 6 at para. 56, citing Mohan at 23.


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Judges cannot simply defer to consensus in the scientific community because science and technology are often moving too quickly for a “consensus” to form before the issue reaches the courts. In an earlier era common law judges frequently took refuge in a theory of “general acceptance” in the science or art to which the evidence belonged. In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) for example, the defendant was accused of murder and offered the results of a systolic blood pressure description test, a precursor to the polygraph, as evidence of his innocence.24 This was a novel technique at the time and no community of experts had yet emerged to support its reliability. The Court held that expert testimony was admissible only when the scientific principle or technique from which it was deduced had gained general acceptance in the particular field in which it belonged. General acceptance is not only slow but it has other limitations. As our Court noted in R. v. J.-L.J., at one point in the not too distant past, the highest authorities in the western world were agreed that the world was flat. (para. 34)

Moreover, some areas of claimed expertise are more easily validated and reproduced than others. DNA methodologies, for example, lend themselves more easily to testing, critique and the generation of error rates than do theories in the “softer” sciences, such as psychology.

If the courts cannot defer to “general acceptance” in the relevant scientific community, and yet have experienced considerable difficulty themselves in coming to grips with various fast-moving fields of science and technology, as well as high finance and other fields of expertise, it becomes apparent that steps must be taken to modify both the way in which expert evidence is given and assessed, as well as the professionalism of some of those called on to give the evidence. What is required, in short, is a collective recognition by both the legal community and the various professional bodies representing different fields of expertise, of the problems now confronting the trial courts, and a cooperative attempt to bring about a measure of institutional reform.

V. STANDARDS OF PROFESSIONALISM

I referred at the outset to the concept of the expert as gladiator. This concept was nicely captured by Professor Kousser:

“Lawyers see the topic from a different vantage point. If my experience with them is at all representative, attorneys tend to believe that their own experts are pure, even to the point of being too prissy to agree to state their own conclusions in a way which would be most helpful to the lawyers’ clients — while the other side’s are merely lying for money.”25

The Goudge Inquiry, on the other hand, was impressed with the Code of Practice and Performance Standards for Forensic Pathologists in England and Wales which provides for a much higher level of candour and disclosure by the expert witness than we are used to, including an obligation to declare (if I may paraphrase):

24 See the commentary in L. Moresk, “Get on Board for the Ride of Your Life! The Ups, the Downs,

the Twists, and the Turns of Applicability of the ‘Gatekeeper’ Function to Scientific and Non-Scientific Expert Evidence: Kumho’s Expansion of Daubert” (2001) 34 Akron L. Rev. 689 at p. 694.

25 See footnote 2, at p. 6.


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(a) details of academic and professional qualifications, experience, and accreditation relevant to the opinions expressed, as well as the range and extent of this expertise and any relevant limitations on it;

(b) the levels of confidence or certainty with which the opinions are expressed; (c) any alternative explanations that are raised by the case problem with an analysis

of why these alternative explanations can or cannot be ruled out; (d) what the expert has to say that is relevant to the live or pertinent issues in the case; (e) any area of controversy that may be relevant to the opinions, and placing the

opinions in that context; (f) any limits of the science or technology or “art” relevant to the particular opinions; (g) any other expert opinions relied upon informing the expert opinion; and (h) the facts found and the reasoning process that was followed, leading to the

opinions expressed. (emphasis added)

This calls for increased professional candour (almost a checklist for cross examination by opposing counsel) should be accompanied by strengthened professional associations of the forensic wing of various areas of expertise. Dr. Smith, for example, claimed to have had little understanding of his role in court. He told the Goudge Inquiry that

In the very beginning, when I went to court on the few occasions in the 1980's, I honestly believed it was my role to support the Crown Attorney. I was there to make a case look good. That’s the way I felt.26

Justice Goudge recommended that experts would benefit from increased professionalism and education, an enhanced awareness of the risks of confirmation bias, the promotion of an evidence-based culture, complete transparency concerning both what evidence is communicated to the expert and what parts of the evidence are relied upon to form the opinion.27 His analysis is a valuable contribution to much needed reform not only in the field for forensic pathology but for expert testimony more broadly.

VI. LEGAL EDUCATION

Much greater effort is required in both the general and particularized education of judges and lawyers is overdue. The National Judicial Institute has taken the lead to bring groups of Canadian judges together to explore scientific concepts and subjects that may give rise to litigation. Some of the law societies have developed similar programs for lawyers. As Secretary of State Donald Rumsfeld memorably pointed out some years ago, danger lurks not only in the things we don’t know but in the things we don’t know we don’t know.

VII. JUDICIAL RECRUITMENT

Traditionally, little effort has been made in Canada to recruit judges with a scientific or technical background. This is true even of the Federal Court where most intellectual property litigation takes place. In many jurisdictions the ideal of the “generalist judge” is

26 “Discredited pathologist admits he was profoundly ignorant” CBC News (28 January 2008),

online: http://www.cbc.ca/canada/story/2008/01/28/smith-inquiry.html. 27 Goudge Report, Recommendations, at p. 69.


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giving way to a more specialist bench that is able to operate in particular cases with a much shorter learning curve.

VIII. MODIFICATION OF THE ADVERSARIAL SYSTEM

Our present system contemplates that a case must be resolved on the evidence heard in the courtroom. Yet the courtroom, with all its formalities and evidentiary rules is a poor schoolhouse, and “duelling experts” may make bad teachers. Courts are, however, the masters of their own procedure and have the flexibility to modify to their own advantage the framework within which experts testify. Why, for example, in a case that requires a judge to grapple with serious scientific evidence, can the parties not arrange for an out-of-court seminar on the basic science or expertise involved in a case? This was done for a panel of judges in the House of Lords in Kirin-Amqen Inc. v. Hoechst Marion Roussel Ltd [2005] 1 All E.R., a patent case. One can imagine the technique being used with equal benefit in a case involving hedge funds, financial derivatives or credit swaps.

As to the expert evidence presented by the parties, the rules of procedure might be modified to require experts to exchange reports and meet face-to-face for an unmediated discussion before trial. This has been recommended by a recent British Columbia Task Force on Civil Justice as a mandatory step, as well as ordering opposing experts to produce a joint report which defines key terms as well as the points of agreement and disagreement. Whether such a reform, if implemented, is pursued in the spirit it was intended remains to be seen.

Once the hearing begins, more frequent consideration might be given to a court-appointed expert nominated by the parties to sit with the judge or jurors to respond to their questions within the relevant field of expertise. In some cases, it may be appropriate for the court to take the initiative in appointing its own scientific “amicus curiae” to provide assistance in evaluating the technical evidence even without the consent of the parties. This is the tradition in some continental legal systems, and is the practice in admiralty courts (which have a civil law genesis) including the Federal Court of Canada sitting in admiralty. There is much resistance at the bar to such a proposal, but it should be considered at least in this jurisdiction in greater depth. It might serve the objective of keeping the costs of litigation proportionate to what is at stake, as well as helping to level the playing field.

Moreover, a court should be able to require opposing experts to testify on the same panel and be subject to questioning in the presence of each other, with the right to question each other in the presence of the tier of fact. The procedure whereby opposing experts testify together on the same panel is regularly used in continental legal systems as well as by administrative agencies in Canada, such as the National Energy Board, and is employed with success in the Federal Court of Australia (where it is known as the “Australian hot pot”). The theory is that experts testifying in the presence of one another are likely to be more measured and complete in their pronouncements, knowing that exaggeration or errors will be pounced upon instantly by a learned colleague, as opposed to being argued about days later, perhaps by unlearned opposing counsel.

IX. CONCLUSION

It is easier to identify the problems than to arrive at solutions acceptable not only to the bench but to the bar (and its clients) and to the various communities of experts. Yet


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the deficiencies of the present approach to expert evidence in the courts are obvious, and in the result risk the credibility of judicial decisions in such matters. The public is rightly shocked by the scandal of demonstrated miscarriages of justice based on flawed expert testimony as disclosed by the Goudge Inquiry into Dr. Charles Smith, and the Kaufman inquiry into the wrongful conviction of Guy Paul Morin. The Courts ignore public shock at their peril.

The role of experts has evolved over the years from an idealistic concept of avuncular friends of the courts to a greater tendency in recent times towards paid gunslingers. If the initial idea was unrealistic, the second is becoming increasingly unacceptable to all concerned. There are numerous proposals for reform. The question is whether the natural lethargy of the legal community will allow the best of them to be implemented.

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The Changing Role Of The Experts