scholarly journals The Uncertain Duty of the Expert Witness

1969 ◽  
pp. 635 ◽  
Author(s):  
Paul Michell ◽  
Renu Mandhane
Keyword(s):  
Expert Testimony ◽  
Expert Witness ◽  
Policy Issues

This article provides a discussion about policy issues currently facing Canadian courts in relying on expert testimony. Changes in the standards of admissibility, the role and responsibilities of the expert witness including the overarching duty to the court, the extent of any duly of impartiality and independence and possible internal and external controls on the use of experts are discussed. A thorough review of authorities from within and outside of Canada is provided.

A Trial Consultant's View of the Medical Expert Witness

2013 ◽  
Vol 18 (4) ◽  
pp. 7-10
Author(s):  
Deborah Rutt ◽  
Kathyrn Mueller
Keyword(s):  
Nonverbal Communication ◽  
Expert Testimony ◽  
Medical Literature ◽  
Expert Witness ◽  
Personal Injury ◽  
Expert Witnesses ◽  
Good Teacher ◽  
Medical Expert ◽  
Medical Terms ◽  
Medical Issues

Abstract Physicians who use the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides) often serve as medical expert witnesses. In workers’ compensation cases, the expert may appear in front of a judge or hearing officer; in personal injury and other cases, the physician may testify by deposition or in court before a judge with or without a jury. This article discusses why medical expert witnesses are needed, what they do, and how they can help or hurt a case. Whether it is rendered by a judge or jury, the final opinions rely on laypersons’ understanding of medical issues. Medical expert testimony extracts from the intricacies of the medical literature those facts the trier of fact needs to understand; highlights the medical facts pertinent to decision making; and explains both these in terms that are understandable to a layperson, thereby enabling the judge or jury to render well-informed opinions. For expert witnesses, communication is everything, including nonverbal communication that critically determines if judges and, particularly, jurors believe a witness. To these ends, an expert medical witnesses should know the case; be objective; be a good teacher; state opinions clearly; testify with appropriate professional demeanor; communicate well, both verbally and nonverbally; in verbal communications, explain medical terms and procedures so listeners can understand the case; and avoid medical jargon, finding fault or blaming, becoming argumentative, or appearing arrogant.

scholarly journals Performing Expertise: The Design of Audiovisual Links and the Construction of the Remote Expert Witness in Court

2018 ◽  
Vol 28 (5) ◽  
pp. 698-718
Author(s):  
Emma Rowden ◽  
Anne Wallace
Keyword(s):  
Cognitive Load ◽  
Empirical Research ◽  
Expert Testimony ◽  
Expert Witness ◽  
Mode Of Delivery ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Jury Trials ◽  
Technological Improvements ◽  
The Relationship

This article reports on empirical research conducted into the use of audiovisual links (videolinks) to take expert testimony in jury trials. Studies reveal ambivalent attitudes to court use of videolink, with most previous research focussed on its use for vulnerable witnesses and defendants. Our study finds there are issues unique to expert witnesses appearing by videolink, such as compromised ability to gesture and interact with exhibits and demonstrative tools, and reductions in availability of feedback to gauge juror understanding. Overall, the use of videolinks adds an additional cognitive load to the task of giving expert evidence. While many of these issues might be addressed through environmental or technological improvements, we argue this research has broader ramifications for expert witnesses and the courts. The use of videolinks for taking expert evidence exposes the contingent nature of expertise and the cultural scaffolding inherent in its construction. In reflecting on the implications of these findings, and on the way that reliability, credibility and expertise are defined and established in court, we suggest a more critical engagement with the relationship between content and mode of delivery by stakeholders.

Rebuttal: Expert Ethics Testimony

2000 ◽  
Vol 28 (3) ◽  
pp. 240-242 ◽  
Author(s):  
Françoise Baylis
Keyword(s):  
Medical Treatment ◽  
Expert Testimony ◽  
Expert Witness ◽  
Normative Ethics ◽  
Descriptive Ethics ◽  
Made In

According to Giles Scofield, ethicists can provide expert testimony in descriptive ethics and metaethics, but not normative ethics. Lawrence Schneiderman appears to disagree with this view, and presumably believes that it is appropriate for an expert witness in ethics to provide ethics testimony in all three areas. I draw this conclusion from several claims made in his commentary which aim to show that we would be contending experts if both invited to testify on a case involving claims about futile medical treatment. This disagreement aside, taken together both commentaries suggest that my testimony in the case of Andrew Sawatzky is wanting.In the response that follows I do not engage in a debate about the content of my testimony.

Improving Judge & Jury Evaluation of Scientific Evidence

Daedalus ◽  
2018 ◽  
Vol 147 (4) ◽  
pp. 164-180
Author(s):  
Valerie P. Hans ◽  
Michael J. Saks
Keyword(s):  
Expert Testimony ◽  
Expert Witness ◽  
Scientific Evidence ◽  
Technical Information ◽  
Educational Interventions ◽  
Expert Evidence

The role of the expert witness in trials is a paradox. Judges and jurors need help with matters beyond their understanding, and judges are expected to act as gatekeepers to ensure that jurors are not fooled by misleading expert testimony. Yet, as gatekeepers, judges might not effectively distinguish sound from unsound expert testimony. As factfinders, judges and jurors both might have difficulty comprehending expert evidence, intelligently resolving conflicts between experts, and applying the scientific and technological evidence they hear to the larger dispute before them. This essay explores those problems and a variety of possible solutions, ranging from more effective ways parties might present technical information at trial, to educational interventions supervised by the court, to making juries more effective in performing their task, to more controversial measures, such as replacing conventional juries with special juries and replacing generalist judges with expert judges.

Pathology Expert Witness Testimony and Pathology Practice: A Tale of 2 Standards

2005 ◽  
Vol 129 (10) ◽  
pp. 1268-1276
Author(s):  
Elliott Foucar
Keyword(s):  
Literature Review ◽  
Expert Testimony ◽  
Medical Literature ◽  
Expert Witness ◽  
Critical Role ◽  
Standard Of Care ◽  
Background Information ◽  
Malpractice Litigation ◽  
Expert Opinions ◽  
Mesh Terms

Abstract Context.—Pathologists work in an environment in which, to the extent possible, diagnostic decisions are based on scientific principles. It can therefore be a rather shocking experience when a pathologist finds one of his or her diagnostic decisions being evaluated by a legal system developed and controlled by lawyers and judges rather than by scientists or pathologists. This experience can be even more troubling when a key participant in the proceedings is a fellow pathologist guiding a jury toward an unfamiliar interpretation of the pathology standard of care. Objective.—To provide the interested pathologist with the background information necessary to (1) understand the role of expert testimony in malpractice litigation and (2) understand why there can be a gap between expert opinions expressed in court and expert opinions expressed in a medical care context. Data Sources.—Medical literature review supplemented by review of subspecialty position papers, selected articles from newspapers and magazines, and legal decisions. The medical literature review was limited to articles published in English and was based largely on articles retrieved using the MeSH terms expert testimony/legislation & jurisprudence, and pathology/legislation & jurisprudence. Conclusions.—Medical error has become an increasingly important topic for pathologists, and although errors or allegations of error are evaluated in many ways, the evaluation with the most impact on the individual pathologist is a malpractice case. During the last decade physicians have increasingly become aware of the critical role played by expert testimony in malpractice litigation. Some physicians have asserted that providing expert testimony is the practice of medicine, and that it is unacceptable for juries to be presented with expert testimony that incorrectly describes medical practice standards. However, this opinion has been vigorously opposed by attorneys who feel that juries are best able to come to a correct conclusion if they base their deliberations on a broad spectrum of opinion. Gaining an increased role in the oversight of expert testimony would allow physicians to establish a closer alignment between opinions expressed in court testimony and opinions expressed in clinical practice. However, despite some physician success in inserting themselves into the oversight process, both physicians and physician organizations attempting to take action against misleading expert testimony continue to be vulnerable to legal attack.

Expert Testimony by Persons Trained in Ethical Reasoning: The Case of Andrew Sawatzky

2000 ◽  
Vol 28 (3) ◽  
pp. 224-231 ◽  
Author(s):  
Françoise Baylis
Keyword(s):  
Decision Making ◽  
Expert Testimony ◽  
Expert Witness ◽  
Health Centre ◽  
Ethical Reasoning ◽  
Medical Futility ◽  
Surrogate Decision Making ◽  
Exclusionary Rule ◽  
Persons With Disabilities ◽  
Surrogate Decision

In February 1999, I received a call from a lawyer at Hill Abra Dewar stating that she had instructions to retain my services as an expert witness in the case of Sawatzky v. Riverview Health Centre. She was representing the Manitoba League of Persons with Disabilities which had intervenor status.In Canada the admission of expert testimony depends upon the application of four criteria outlined in R. v. Mohan by Justice Sopinka. These criteria are: (a) relevance; (b) necessity in assisting the trier of fact, (c) the absence of any exclusionary rule; and (d) a properly qualified expert. The lawyer believed that I could provide the court with relevant, reliable ethics testimony about surrogate decision-making and about medical futility-information that likely would be outside the experience and knowledge of the trier of fact.

scholarly journals Fingerprint Identification: Potential Sources of Error and the Cause of Wrongful Convictions

2017 ◽  
Vol 10 (1) ◽  
Author(s):  
Irene C Grose
Keyword(s):  
Expert Testimony ◽  
Human Error ◽  
Expert Witness ◽  
Scientific Basis ◽  
Fingerprint Identification ◽  
Forensic Evidence ◽  
Wrongful Convictions ◽  
Sources Of Error ◽  
Potential Sources ◽  
Latent Prints

Fingerprint identification has long been used by law enforcement to either identify or eliminate potential suspects in a case. It relies on friction ridges – the upraised skin that forms grooves on fingers – and friction ridge impressions, which form from natural secretions of sweat and other trace components. Latent prints, a common term for friction ridge impressions, have many benefits and advantages as a type of forensic evidence. However, they are not a perfect tool: wrongful convictions identified by post-conviction DNA testing and the re-evaluation of forensic evidence have spawned criticism and investigation into the scientific basis of this branch of forensics. This literature review examines literature in both the scientific and legal fields, and investigates three main themes: the principle of uniqueness assumed in individualization, the presence of cognitive bias and human error in analysis, and the changing role of expert testimony in court. There are arguments both for and against uniqueness, but it is still difficult to prove using statistical models and data analysis. Bias in examiners, on the other hand, undeniably exists in different ways, and should be actively guarded against in fingerprint analysis and expert testimony. Expert witness testimony that misleads, exaggerates, or is scientifically unsupportable has been linked to wrongful convictions in the past, highlighting the importance of careful regulation of how an expert witness is advised to testify. In addition to these topics, the techniques of collecting latent print evidence and the standard procedures of analysis have also been examined and evaluated for potential sources of error. Le maintien de l’ordre public utilise depuis longtemps les empreintes digitales pour identifier et éliminer des suspects d’une affaire criminelle. Les empreintes digitales se ent aux crêtes papillaires — les crêtes et les creux qui formes des rainures sur les doigts — et des empreintes des crêtes papillaires, ce qui se forme par les sécrétions naturelles de transpiration et autres composantes de traces. Les empreintes latentes, un terme courant pour les empreintes digitales, possèdent plusieurs avantages en tant qu’élément médico-légal de preuve. Toutefois, ce n’est pas une ressource able; des condamnations injustifiées identifiées par un test d’ADN post-condamnatoire et la réévaluation de l’évidence médico-légale ont frayé des critiques et des enquêtes de la base des sciences des empreintes digitales. Cette revue examine les textes dans les domaines scientifiques et médico-légaux, et examine trois thèmes : le principe d’unicité assumé par l’individualisation, la présence d’un biais cognitif et l’erreur humaine dans l’analyse, et le rôle changeant de témoignages experts devant la Cour. Il existe des arguments pour et contre l’unicité, mais l’unicité est tout de même difficile à prouver en utilisant les modèles statistiques et l’analyse de données. Un préjugé chez les examinateurs, d’autres parts, existe incontestablement, et devrait être activement évité lors de l’analyse d’empreinte digitale et de témoignages experts. Le témoignage d’expert qui induit en erreur, qui est exagéré ou qui est scientifiquement faux a mené à des condamnations injusti ées dans le passé, ce qui met en évidence l’importance d’une législation prudente sur comment l’expert est conseillé de témoigner. En plus de ces thèmes, les techniques de collecte des empreintes digitales latentes et les procédures normales d’analyse ont aussi été examinés et évalués pour des sources d’erreurs potentielles. 

Declarations versus Investigations: The Case for the Special Reasoning Abilities and Capabilities of the Expert witness in Psychology/Psychiatry

1985 ◽  
Vol 13 (1-2) ◽  
pp. 33-59 ◽  
Author(s):  
David Faust
Keyword(s):  
Systematic Review ◽  
Data Integration ◽  
Expert Testimony ◽  
Expert Witness ◽  
Clinical Impression ◽  
Human Judgment ◽  
Judgment Accuracy ◽  
Beneficial Effects ◽  
Reasoning Abilities

Arguments regarding the credibility of psychologists’ and psychiatrists’ expert testimony are commonly restricted to impressions about whether claims to special reasoning powers or capabilities are justified or not. The large, but often neglected body of research on human judgment provides a means for analyzing these claims scientifically. Systematic review shows that claims for the beneficial effects of experience and practice on judgment accuracy, the clinician's powers of data integration, the ability to utilize clinical impression, and the capacity to detect malingering have little evidence and extensive counterevidence. Caution is advised in using these claims to bolster one's credibility.

Effects of an Attorney's Line of Argument on Accountants' Expert Witness Testimony

2004 ◽  
Vol 79 (1) ◽  
pp. 221-245 ◽  
Author(s):  
David N. Ricchiute
Keyword(s):  
Expert Testimony ◽  
Expert Witness ◽  
Witness Testimony ◽  
Expert Witness Testimony ◽  
Auditor Liability ◽  
Mock Trial ◽  
Trial Judges ◽  
Auditing Standards

I test whether hints at an attorney's line of argument influence accountants' expert witness testimony. In experiment 1, litigation services accountants review evidence adopted from a recent auditor-liability case and decide whether a defendant auditor complied with generally accepted auditing standards. I find that hints posed before the review of evidence result in decisions that are more consistent with the attorney's verdict preference. Motivated by a lack of research on the role of accountants' expert testimony in judges' decisions and by evidence that most auditor-liability cases settle, I find in experiment 2 that the certainty of decisions in an expert's report affects the settlement decisions of experienced lawyers, a proxy for trial judges. These findings show that hints at an attorney's line of argument can influence accountants' decisions about evidence documenting auditing issues, and that the certainty of decisions in an expert's report can affect the decisions of mock trial judges. The study has implications for drafting attorney-expert retention letters, and for training accounting experts and the judiciary about the role of hints in the attorney-expert setting.

Admissibility of Human Factors Expert Testimony in Light of Daubert

1996 ◽  
Vol 40 (10) ◽  
pp. 511-514
Author(s):  
Martin I. Kurke
Keyword(s):  
Human Factors ◽  
Scientific Knowledge ◽  
Expert Testimony ◽  
Expert Witness ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Witness Testimony ◽  
Specialized Knowledge ◽  
Expert Witness Testimony ◽  
Professional Needs

The 1993 Supreme Court decision in Daubert v Merrell Dow Pharmaceuticals, Inc. created new, more stringent rules for admissibility of expert witness testimony based upon “scientific” knowledge as opposed to expert testimony based upon “technical or other specialized” knowledge. Because human factors professionals may testify on the basis of either of the two categories, they should be aware of the requirements for admissibility of both categories. Each time one is engaged as a potential expert witness, the human factors-ergonomics professional needs to determine the basis of the testimony he/she is about to provide and to notify the client attorney accordingly. This lecture describes the evolution of requirements for admissibility of both kinds of expert testimony. It also discusses the implications of additional requirements imposed upon all expert witnesses by the 1993 amendment of Rule 26 of the Federal Rules of Civil Procedure

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