Expert evidence may be unreliable for many reasons.

Adversarial legal systems may foster production and admission of unreliable expert evidence. In New South Wales, expert evidence admission is governed by the common law, Evidence Act 1995, Criminal Procedure Act 1986, Court Rules, Barristers Rules 2001 and Solicitors Rules. This may not always exclude unreliable expert evidence, or prevent its prejudicial effects. 1.1.1 Expert opinion evidence: importance and risk Courts often consider expert opinion evidence to have probative value outweighing its prejudicial effects. Australian courts increasingly tend to admit expert opinion evidence, despite knowing its potential dangers.1 Criminal justice in particular has moved dramatically from confessional evidence to evidence-based prosecutions, which are heavily dependent upon forensic analysis.2 This trend raises serious concerns. The risk of erroneous expert evidence leading to miscarriage of justice has long been appreciated.3 Unfortunately, this risk has often materialized. The Chamberlain convictions are one

1.1.3 Balanced analysis An appearance of pro-defence bias may inevitably accompany criticism of expert evidence reliability in criminal trials. The prosecution always initiates those trials. The prosecution calls the first, and sometimes calls the only, expert opinion evidence. The academic task of assessing potential sources of unreliable expert evidence necessarily overlaps the defence task of impugning that evidence.

1.3.1 Unreliability Unreliable evidence is the broadest class of defective evidence. It is evidence of questionable veracity46 or not of sound and consistent character or quality.47

Both courts and scientists face a major difficulty in obtaining an accurate and dependable standard of truth, and knowing when it has been obtained.48 Philosophers have long recognised the difficulty in defining

truth.49 Even thinking of evidence in terms of its reliability has been criticised for confusing separate questions of the sensitivity, quality control, discriminatory power and honesty of that evidence.50 However, these aspects of evidence collectively determine, in practice, whether courts should rely on evidence as representing truth, in order to better dispense justice. Judicial inquiry is practical, not metaphysical.51 Evidentiary Evidentiary reliability therefore remains a useful legal concept. Evidence may be unreliable because it is biased, inaccurate or deliberately deceptive. Alternatively, the current state of scientific knowledge in any given field simply may not provide an objective and scientific standard against which expert assertions can be measured, despite claims to the contrary. Evidence which presents the truth as knowable when on currently available objective and scientific criteria it is not is also unreliable.52 Even unbiased, accurate53 expert evidence may be unreliable, if experts measure their facts against an erroneous standard to form their opinion.

This source of unreliability may be particularly difficult to

expose, especially by courts unschooled in scientific method, because there is no clear standard against which to discredit the evidence.

1 Ian Freckleton, Judicial Attitudes Toward Scientific Evidence: The Antipodean Experience (1997) 30 University of California Davis Law Review 1137, 1139; Marijke Malsch and Ian Freckleton, Expert Bias and Partisanship: A Comparison Between Australia and the Netherlands 11 Psychology, Public Policy and Law 42, 45; Ian Freckleton, The Trial of The Expert: A Study of Expert Evidence and Forensic Experts (1987) 4-6; Julie Hamblin, Selecting and Instructing the Expert Medical Witness in Legal and Accounting Management Seminars Pty Ltd (eds), Expert Evidence; Selected Papers (1995) 73; Ian Freckleton and Hugh Selby, Expert Evidence in Criminal Law (1999) 1. 2 Justice J R T Wood, Forensic Sciences from the Judicial Perspective [2003] Australian Bar Review Lexis 4, 2. See also Andre A Moenssens, Novel Scientific Evidence in Criminal Cases: Some Words of Caution (1993) 84 Journal of Criminal Law and Criminology 1, 11-12; J H Phillips and J K Bowen, Forensic Science and the Expert Witness (1989) 83. 3 Edwin Borchard and Russel Lutz, Convicting the Innocent (1961), cited in Kent Roach,

Wrongful Convictions and Criminal Procedure (2003-4) 42 Brandeis Law Journal 349, [358]. See also Justice Michael Kirby, Foreward, in Vernon D Plueckhahn and Stephen M Cordner, Ethics, Legal Medicine and Forensic Pathology (2nd ed, 1991) v.

46 Peter Nygh and Peter Butt, Butterworths Concise Australian Legal Dictionary (2nd ed, 1998) 447. 47 Ibid. 48 Christine Willmore, Codes of Practice: Communicating Between Science and Law in Michael Freeman and Helen Reece (eds) Science in Court (1998) 37, 39. 49 Epistemology is the branch of philosophy concerned with knowledge, what knowledge is true, or indeed if true knowledge is even possible: Pearsall and Trumble, above n 15, 473-4. However, some epistemologists assert that truth is really a metaphysical rather than epistemological concept: Linda Martin Alcoff, Epistemology, The Big Questions (1999) 309. 50 Bernard Robertson and G A Vignaux, Interpreting Evidence: Evaluating Forensic Science in the Courtroom (1995) 7-8. 51 Weld Blundell v Stevens (1920) AC 956, 986 (Sumner L).

CURRENT LAW Expert opinion evidence may be particularly persuasive, due to its apparent objectivity and scientific basis.1 As a result, only if expert opinion can be regarded as insignificant,2 could not have changed the verdict,3 or an alternative verdict found independently of the evidence would be unreasonable4 will erroneous admission or exclusion of expert opinion evidence not require retrial.5

1 United States v Baller 519 Fed 2d 463, 466 (1975); R v Gilmore [1977] 2 NSWLR 935, 939 (Street CJ); R v Turner [1975] 1 All ER 70, 74 (Lawton LJ); Paul Gerber, Playing Dice with Expert Evidence: The Lessons to Emerge from Regina v Chamberlain 147 The Medical Journal of Australia 243, 243, 245.

2 Clark v Ryan (1960) 103 CLR 486, 503 (Menzies J). 3 Ibid; Piddington v Bennet Wood Pty Ltd (1940) 63 CLR 533, 554 (Dixon J); Balanzuela v De Gail (1959) 101 CLR 226, 235 (Dixon CJ). 4 Clark v Ryan (1960) 103 CLR 486, 504 (Menzies J); Piddington v Bennet Wood Pty Ltd (1940) 63 CLR 533, 554 (Dixon J). 5 Clark v Ryan (1960) 103 CLR 486, 503, 504 (Menzies J); Piddington v Bennet Wood Pty Ltd (1940) 63 CLR 533, 554 (Dixon J); Balanzuela v De Gail (1959) 101 CLR 226, 232 (Dixon CJ); Gerber, above n 1, 246.

2.1.1 Admitting expert opinion evidence Section 79 of Commonwealth and New South Wales Evidence Acts allows witnesses with specialised knowledge based on the person's training, study or experience to give opinion evidence where the opinion is wholly or substantially based on that knowledge.6 With limited other exceptions,7

opinion evidence is inadmissible.8 However, experts may consider matters that are common knowledge in forming their expert opinions.9 The phrase specialized knowledge is not restrictive.10 The opinion of witnesses possessing peculiar skill is admissible whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance.11 The expertise must give the expert more opportunity of judging than laypersons.12 However, unless a jury can resolve differences of expert opinion using their common knowledge or experience, the jury cannot resolve the conflict to eliminate reasonable doubt.13 Unreliable expert opinion may then need to be excluded to avoid the trial miscarrying.14

6 Evidence Act 1995 (Cth) s 79; Evidence Act 1995 (NSW) s 79. For convenience, only the

Evidence Act 1995 (NSW) is cited elsewhere in this thesis, but the relevant provisions are common to both Acts. 7 such as where the opinion evidence is admissible other than to prove the existence of fact asserted by the opinion (Evidence Act 1995 (NSW) s 77) or where the opinion is based on what the person directly perceived and admission is necessary to obtain an adequate understanding of the matter (Evidence Act 1995 (NSW) s 78). 8 Evidence Act 1995 (NSW) s 76. The traditional distinction between fact and opinion is questionable but nevertheless applied. Peter Gillies Opinion Evidence (1986) 60 Australian Law Journal 597, 598-9; Australian Law Reform Commission, Evidence Volume 1, Report No 26 (1985) [738]. 9 Evidence Act 1995 (NSW) s 80 (b); Velevski v The Queen (2002) 187 ALR 233, 252-3 (Gaudron J). 10 Adler v Australian Securities and Investments Commission [2003] NSWCA 131 (Unreported, Mason P, Beazley JA and Giles JA, 8 July 2003) [629] (Giles JA). 11 Clark v Ryan (1960) 103 CLR 486, 491 (Dixon CJ). See also R v Gilmore [1977] 2 NSWLR 935, 938 (Street CJ); Velevski v The Queen (2002) 187 ALR 233, 252-3 (Gaudron J). 12 R v Silverlock (1894) 2 QB 766, 769 (Vaughan Williams J). 13 Velevski v The Queen (2002) 187 ALR 233, 253 (Gaudron J); Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 558 (Gibbs CJ and Mason J).

14 Ibid.

Courts prefer admitting expert evidence for attack by crossexamination to excluding it, unless exaggerated popular opinion of the accuracy of a particular technique makes its use prejudicial or likely to mislead.15 The risk of expert evidence bias has been held to be no reason to exclude it.16

Despite this authority, an exact Australian test for admitting expert opinion evidence remains elusive. The Australian Law Reform Commission considered that admission of expert opinion evidence should be left to courts discretion.17 Some Australian authorities have considered that section 79 specialized knowledge must form a body of knowledge sufficiently organized or recognised to be accepted as a reliable body of

knowledge for the expert opinion to be admissible.18 This general acceptance test is derived from Frye v United States.19 Other Australian authorities require courts to assess evidentiary reliability.20 Still others adopt both tests.21 Peer recognition within a recognised field of expertise generally guarantees court recognition,22 but the test for field of expertise remains unclear.23

2.1.2 Is evidentiary reliability necessary for admission? In the United States, a standard of evidentiary reliability was applied in the landmark decision of Daubert v Merrell Dow Pharmaceuticals.24 Daubert decided that courts must ensure any and all scientific testimony and evidence submitted is not only relevant but reliable25 and commented that evidentiary reliability will be based on scientific validity.26 This judicial gate-keeping role27 effectively displaced the centuries-old view that in matters of science, the reasoning of men of science can be answered only by men of science.28 Instead, Daubert provided four criteria to assess

evidentiary reliability; falsifiability, the known or potential error rate, whether or not peer review had been done and general acceptance of the field.29

Clearly, if an expert does not actually have the knowledge they profess, their evidence will be excluded, irrespective of whether or not a standard of evidentiary reliability applies in Australia.30 However, if professed knowledge is actually held, whether or not Daubert applies in Australia is important, because application of Daubert may still allow unreliable expert evidence to be excluded. Daubert has been widely criticised for potentially restricting evidence from scientists with unconventional views, or from well-credentialed experts whose methodology is not realistically assessable by courts.31 However, Daubert has also been staunchly defended32 for shifting the legal examination of science from external (peer) to internal (judicial).33

Daubert may be required in the US to curb the worst excesses of biased

expert evidence, particularly if juries are more likely to be duped by junk science than judges.34 Jurors vulnerability in this regard has been doubted.35 [E]mpirical information about the difficulties encountered by jurors in understanding expert evidence is extremely limited in both extent and quality.36 However, if juries are less likely than judges to detect unreliable evidence, Daubert is equally relevant to Australian criminal trials in which pathologist evidence is likely to figure. Most such trials will be for serious indictable offences involving juries.37

Daubert has not been expressly accepted into Australian law.38 Subsequent United States authority may have quietly retreated from it. For example, Kumho Tire Co Ltd v Carmichael39 decided that only those Daubert criteria relevant to a particular field of expertise, if any, need be applied when assessing expert evidence from that field.40

The Evidence Act does not explicitly address Daubert criteria.41 Section 79 requires specialized knowledge for expert opinion evidence to be

admissible.42 This may impose a standard of evidentiary reliability in Australia, because section 79 is similar to rule 702 of the US Federal Rules of Evidence, on which Daubert is the leading decision.43 However, the two provisions are not identical. Section 79 refers to specialized knowledge,

not the scientific, technical or other specialised knowledge of rule 702.44 Additionally, rule 702 requires the specialised knowledge to assist the trier of fact.45 Australian common law once required specialised knowledge to assist the trier of fact.46 However, section 79 of the subsequently enacted Evidence Act does not specifically require such assistance. The Act may therefore have altered the common law, further distinguishing Australian law on expert opinion evidence from rule 702.47 Despite this, some High Court justices have considered that section 79 requires admissible expert evidence to meet an evidentiary reliability standard. In HG v The Queen, Justice Gaudron held that expert opinion evidence must form a reliable body of knowledge and experience.48 Justices Gummow and Callinan have

agreed.49

However, unreliable expert evidence may still be excluded under several broad discretionary Evidence Act provisions.61 Section 136 allows courts to limit the use of any evidence that might unfairly prejudice a party, mislead or confuse.62 Section 135 allows courts to refuse to admit evidence if the danger it might unfairly prejudice a party, mislead or confuse substantially outweighs its probative value.63 Under section 137, courts must exclude prosecutorial evidence in criminal proceedings if its probative value is outweighed, even marginally, by the danger of unfair prejudice to the defendant.64 Exercise of discretion under sections 135, 136 or 137 may involve considering whether the field is reliable and can be reliably applied to the fact at issue, whether the facts upon which the opinion is based have been proved, whether the expert has ignored relevant facts, whether any of the experts assumptions about the law are incorrect, whether the experts reasoning is valid, whether the fact-finder is capable of understanding the

evidence, the court time utilized, and the importance of the issue.65 2.1.5 Criminal Procedure Act 1986 The Criminal Procedure Act 1986 (NSW) also governs admission of expert evidence in New South Wales criminal trials. Procedures for examining and cross-examining criminal trial witnesses must, as far as practicable, be those of Supreme Court trials for indictable offences.66 Courts may order pre-trial disclosure if they are satisfied the criminal trial will be complex,67 either on a partys application or on its own initiative.68 The disclosure timetable is determined by the court.69 64 Evidence Act 1995 (NSW) s 137 (emphasis added). 65 Odgers, above n 18, [1.3.4340]. 66 Criminal Procedure Act 1986 (NSW) s 38. 67 Criminal Procedure Act 1986 (NSW) s 136(2). 68 Criminal Procedure Act 1986 (NSW) s 136(3). 69 Criminal Procedure Act 1986 (NSW) s 137.

Prosecution disclosure must generally include copies of reports from expert witnesses proposed to be called.70 The prosecution must notify the defence of its intention to dispute any defence expert evidence.71 The defence must also disclose copies of any expert witness reports the accused proposes to rely on,72 and notify the prosecution if the defence intends to dispute any expert evidence the prosecution has disclosed.73 These disclosure requirements are ongoing.74 However, while mandatory pre-trial disclosure of expert evidence under the Criminal Procedure Act might be expected to afford a better opportunity to scrutinize and more effectively cross-examine on expert evidence,75 this benefit may be limited for several reasons. Courts may limit pre-trial disclosure to specified aspects of the proceedings,76 or waive pre-trial disclosure requirements altogether.77 Accused persons are not entitled to a copy of sensitive evidence.78 The suggested accompanying clear statement of what the evidence does not

70 Criminal Procedure Act 1986 (NSW) s 138(e). 71 Criminal Procedure Act 1986 (NSW) s 140(a). 72 Criminal Procedure Act 1986 (NSW) s 139(1)(b). 73 Criminal Procedure Act 1986 (NSW) s 139(2)(a). 74 Criminal Procedure Act 1986 (NSW) s 141. 75 J H Phillips and J K Bowen, Forensic Science and the Expert Witness (1989) 7; Vernon D Plueckhahn, Legal Dilemmas in the Use of Expert Medical Evidence: (Concluded) (1982) 14 The Australian Journal of Forensic Sciences 158, 162. 76 Criminal Procedure Act 1986 (NSW) s 136(5). 77 Criminal Procedure Act 1986 (NSW) s 142. 78 Criminal Procedure Act 1986 (NSW) s 281(c).

prove and what inferences cannot properly be drawn from the evidence79 is unlikely to materialize under an adversarial system if there is no statutory compulsion to produce it. Notifying intent to contest expert evidence may provide the party adducing that evidence with an opportunity to reinforce it; tailoring the evidence in advance of the telegraphed challenge. This gives unscrupulous advocates an advantage.80 Courts discretion to waive disclosure requirements, particularly in relation to sensitive evidence, may prevent the accused from accessing the prosecutions expert evidence prior to cross-examination.

Until recently, several Supreme Court Rules also controlled expert opinion evidence. These represented Australian endorsement of English reforms.102 The rules required parties to supply their experts with a formal code of conduct,103 and serve their experts reports on their opponents at least 21 days before hearing.104 The Court could direct experts to confer, endeavour to reach agreement and provide the Court with a joint report.105 These rules were repealed in 2005,106 perhaps because the Civil Procedure Act 2005 (NSW) was thought to have effectively replaced them. However, the repealed Supreme Court Rules potentially applied to criminal as well as civil proceedings.107 Their repeal has therefore diminished court control over expert witness evidence in criminal proceedings.

Some Barristers and Solicitors Rules relating to expert witness evidence specifically assist criminal defendants. Prosecutors must fairly assist the court to arrive at the truth115 and impartially seek to have all relevant evidence placed intelligibly before the court.116 They must not press the prosecutions case beyond full and firm presentation,117 not argue any proposition of fact or law not reasonably capable of contributing to a finding of guilt,118 and disclose to the opponent as soon as practicable all material including prospective witnesses of which the prosecutor becomes aware which could constitute relevant evidence, unless that disclosure would seriously threaten judicial administration or anyones safety, and this could not be prevented by limiting disclosure to a legal practitioner.119 Prosecutors must also consider when deciding not to disclose a prospective witness whether the defence may suffer, and whether the charge should accordingly be downgraded or withdrawn.120

Prosecutors must also call all witnesses whose testimony is admissible and necessary for the presentation of the whole picture,121 or from whom

115 New South Wales Barristers Rules 2001, r 62; Law Society of New South Wales Solicitors Rules r 23 (A.62). See also Velevski v The Queen (2002) 187 ALR 233, 245 (Gleeson CJ and Hayne J); Whitehorn v The Queen (1983) 152 CLR 663-4 (Deane J); Richardson v The Queen (1974) 131 CLR 116, 199. 116 New South Wales Barristers Rules 2001, r 62; Law Society of New South Wales Solicitors Rules r 23 (A.62). 117 New South Wales Barristers Rules 2001, r 63; Law Society of New South Wales Solicitors Rules r 23 (A.63). 118 New South Wales Barristers Rules 2001, r 65; Law Society of New South Wales Solicitors Rules r 23 (A.65). 119 New South Wales Barristers Rules 2001, r 66; Law Society of New South Wales Solicitors Rules r 23 (A.66) (emphasis added). 120 New South Wales Barristers Rules 2001, r 66A; Law Society of New South Wales Solicitors Rules r 23 (A.66).

121 New South Wales Barristers Rules 2001, r 66B(a); Law Society of New South Wales Solicitors Rules r 23 (A.66B)(a). See also Whitehorn v The Queen (1983) 152 CLR 657, 674-5 (Dawson J); Velevski v The Queen (2002) 187 ALR 233, 259-60 (Gaudron J); Office of the Director of Public Prosecutions of New South Wales, Prosecution Guidelines (2003) <http://www.odpp.nsw.gov.au/guidelines/guidelines.html> at 20 May 2006, 47. These DPP guidelines are made under the Director of Public Prosecutions Act 1986 (NSW) s 13.

statements have been obtained in preparing the prosecutions case,122 unless the prosecutor believes on reasonable grounds that the testimony of that witness is plainly untruthful or is plainly unreliable by reason of the witness being in the camp of the accused.123 The prosecution should not formulate a theory and then tailor its case accordingly.124 The fact that the witnesss evidence does not accord with the prosecutions view is not reasonable grounds for considering the witness to

be unreliable.125 The prosecutor should confer with a witness before determining them to be unreliable.126 The prosecutor must inform the defence as soon as practicable of the identity of any relevant witness the prosecutor does not intend to call, and the prosecutors grounds for not calling them.127 In this case, the prosecution should still assist the accused to call the witness if the accused requests assistance.128 In contrast to these prosecutorial duties, a defence advocate whose client has confessed guilt but pleads not guilty may still act for their client using available expert

122 New South Wales Barristers Rules 2001, r 66B(d); Law Society of New South Wales Solicitors Rules r 23 (A.66B)(d). 123 New South Wales Barristers Rules 2001, r 66B(h); Law Society of New South Wales Solicitors Rules r 23 (A.66B)(h) (emphasis added). 124 R v Kneebone [1999] NSWCCA 279 (Unreported, Spigelman CJ, James J and Smart AJ, 21 September 1999) (James J). 125 Ibid; R v Anderson (1991) 53 A Crim R 421; R v Shaw (1991) 57 A Crim R 425, 450 (Nathan J).

126 R v Kneebone [1999] NSWCCA 279 (Unreported, Spigelman CJ, James J and Smart AJ, 21 September 1999) (James J); R v Shaw (1991) 57 A Crim R 425; R v Armstrong (1998) 4 VR 533; Tran v Magistrates Court of Victoria & Anor (1998) 4 VR 294. 127 New South Wales Barristers Rules 2001, r 66B(i); Law Society of New South Wales Solicitors Rules r 23 (A.66B)(i); Office of the Director of Public Prosecutions of New South Wales, above n 121, 47. 128 Office of the Director of Public Prosecutions of New South Wales, above n 121, 47.

evidence, provided they do not set up an affirmative case inconsistent with the confession or falsely suggest that another person committed the crime.129 However, prosecutors duties operate in more limited fashion than may first appear. If the prosecution does not take an expert witnesss statement, it is not obliged to call the witness to assist the defence,130 even if the prosecution knows the witnesss opinion would likely assist the defence.131

The prosecution alone is responsible for deciding to call a particular witness.132 The court need not ascertain the prosecutors reasons for declining to call a witness and cannot compel the prosecutor to do so.133

Even if the prosecution should have called a witness but failed to, this will not cause a mistrial unless the accused has consequently been deprived of a chance of acquittal that was fairly open.134 Appropriate directions from the trial judge may cure the disadvantage to the defendant.135

129 New South Wales Barristers Rules 2001, r 33; Law Society of New South Wales Solicitors Rules r 23 (A.33). 130 R v Russell-Jones (1995) 3 All ER 239; R v Kneebone [1999] NSWCCA 279 (Unreported, Spigelman CJ, James J and Smart AJ, 21 September 1999) (James J). 131 Velevski v The Queen (2002) 187 ALR 233, 245 (Gleeson CJ and Hayne J). 132 R v Kneebone [1999] NSWCCA 279 (Unreported, Spigelman CJ, James J and Smart AJ, 21 September 1999) (James J); R v Apostilides (1984) 154 CLR 563, 575 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ).

133 Although the prosecution needs to be able to show reasonable grounds why it failed to call the witness: R v Kneebone [1999] NSWCCA 279 (Unreported, Spigelman CJ, James J and Smart AJ, 21 September 1999) (James J); R v Apostilides (1984) 154 CLR 563, 575 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ). 134 Velevski v The Queen (2002) 187 ALR 233, 260 (Gaudron J); R v Apostilides (1984) 154 CLR 563, 577-8 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ). 135 Velevski v The Queen (2002) 187 ALR 233, 274 (Gummow and Callinan JJ). Barristers Rules, Solicitors Rules and prosecutors particular duty to call unfavourable witnesses may therefore help reduce the incidence or effect of unreliable expert evidence, by bringing expert opinions contrary to the advocates case forward for examination. However, it remains doubtful this is sufficient to cure any unreliability of expert evidence fostered by the adversarial system, where the parties retain control of expert selection.

Adversarial conflict may be particularly ill-suited to producing reliable

expert evidence; instead encouraging partisan evidence that is neither independent nor objective.147 In fact, the adversarial system is calculated to bring forward unrepresentative opinions in cases where a range of opinions exists,148 which is almost always.149 Expert evidence can be assumed to closely accord with a partys contentions, otherwise the expert would not be called.150 Indeed, the reliability of expert evidence is

147 Australian Law Reform Commission, Experts Adversarial Background, above n 33, 25; Arbinger v Ashton (1873) 17 LR Eq 358, 374; P Caldwell, Courting the Expert: A Clash of Culture? (2005) 129 British Journal of Haematology 730; Newark Pty Ltd v Civil & Civic Pty Ltd (1987) 75 ALR 350, 351; Thorn v Worthing Skating Rink Co (1877) 6 Ch D 415, 415 fn; David Nelken, A Just Measure of Science in Michael Freeman and Helen Reece (eds) Science in Court (1998) 11, 20-1. This is particularly concerning when trial procedure is understood to be a standardized means of packaging and analyzing information a reconstruction of evidence in the form of a story [that] does not guarantee that the truth will emerge in a trial: W Lance Bennet and Martha S Feldman,

Reconstructing Reality in the Courtroom (1981), 171; Plueckhahn, Pathology and Expert Forensic Evidence in Criminal Proceedings above n 79, 362; Plueckhahn, Legal Dilemmas in the use of Expert Medical Evidence: (Concluded), above n 75, 159. 148 Justice Harold Sperling, above n 34, 2 (emphasis added). 149 United States v Baller 519 Fed 2d 463, 466 (1975); Gerber, above n 1, 244. 150 G Davies, A Blueprint for Reform: Some Proposals of the Litigation Reform Commission and their Rationale (1996) 5 Journal of Judicial Administration 201, 207.

antithetical to the interests of the litigant, except where reliability and interest coincide by accident.151 Some experts have been referred to as saxophones, sounding whichever notes the lawyer desires.152 Lawyers may even have a duty to seek biased or at least eccentric evidence.153 Although experts primary duty is to assist the court, this does not recognise the practicalities of litigation under the adversarial system.154 Experts generally know they are giving an opinion, and therefore that they cannot be indicted for perjury, provided their opinion is genuinely held.155

Unreliable expert evidence may sometimes result from third parties deliberate attempts to influence the forensic investigator,157 or from failing to call the investigator to testify.158 Adversarial laws atmosphere of conflict and confrontation, victory and defeat, may contribute to this type of conduct.159 Expert witnesss work under adversarial law may hold greater appeal for experienced but retired experts, because of the demands on time and emphasis on credentials in the adversarial system. This may tend to perpetuate orthodox views based on historical rather than contemporary research.160

Advocacy deficient in exposing unreliable expert evidence has been identified by one-third to one-half of judges in an Australian Institute of Judicial Administration (AIJA) survey as a significant problem.166 The gulf in resources between prosecution and indigent criminal defendants means

that many defendants may be unable to discover exculpatory expert evidence or effectively cross-examine prosecution experts.167 Judges associates routinely research the law before judgment is issued. However, such research may be superficial. It is unlikely to compensate for an advocates failure to cite relevant authority.168

Sometimes, counsel may even consciously refrain from aggressively crossexamining an expert for fear that attempting to expose deficient testimony will backfire, making counsel appear aggressive or desperate.169 An unsuccessful challenge on cross-examination may actually enhance a witnesss prestige.170 In this environment, the emphatic expert, experienced as a witness but incorrect, may be more convincing than a correct but vacillating peer.171 Experts themselves identify crossexamination as impeding proper understanding of their evidence.172

2.3 BIAS IN EXPERT EVIDENCE 2.3.1 Introduction Assessing the reliability of all forms of expert evidence is impeded by lack

of empirical studies.177 However, empirical study of judicial perceptions confirms that many [judges] are concerned to reduce what they identify as a culture of inadequate objectivity by many doctors.178 Courts have long been aware of the problem of bias.179 Justice Windeyer once approved the acrid observation that it is often quite surprising to see with what facility, and to what extent, [experts] views can be made to correspond with the wishes or the interests of the parties who call them.180 Clearly, a skilled, biased expert can undermine the fairness of the legal process.181 Some sources of bias may be more insidious than overt partisanship.182 Experts may simply have eccentric viewpoints, honestly held, that suit the litigants purposes.183 Inevitably, even if unconsciously,184 well-meaning parties accept evidence in their favour and dismiss as junk their opponents evidence.185 People tend to selectively observe and interpret information in a way that supports their pre-conceived ideas.186 It is usually unnecessary for litigants to attempt to overtly influence their experts.187 Natural selection is sufficient to ensure that those experts who

insufficiently support their clients case are dropped, to eventually disappear from the forensic scene.188

2.3.3 Inherent bias in science Scientists usually selectively push one view when presenting their evidence.195 Attracting sufficient attention to justify scientific publication may even necessitate this.196 Scientists have strong psychological and career interests in the validity and significance of their ideas.197 Evidence contradicting a position may therefore simply be ignored, denied, explained away, isolated, minimised, misunderstood or deemed biased and speculative.198 Pushing a view does not necessarily reflect adversely on scientists competence or integrity.199 However, it is important to understand how and why this occurs, in order to recognise and account for it.200 Scientists may push a view in many ways.

Prosecution experts may fail to disclose the data supporting their opinion, or to indicate why that data is relevant to the accused. If so, the legal burden of

proof remains with the prosecution, but the defence acquires a tactical burden to disprove relevance and prove innocence.223 The practical effect may be that the ordinary burden of proof is reversed. Limited pre-trial discovery may make discharging this tactical burden difficult.224 The difficulty of undermining expert evidence on cross-examination has already been noted. Once testimony has been deemed reliable and admitted, complex and unfamiliar issues must then be understood and legally analysed without bias by the fact-finder.225 That is a separate issue to bias in the expert evidence itself,226 but is nevertheless a major source of unreliability. Human prejudices potentially affecting the fact-finder as well as the expert witness are considered further in section 2.10.

2.8.1 Case construction bias

Case construction bias is a significant feature of adversarial law. It is the inherent tendency of the particular questions chosen to yield a particular result. Put simply, one may not see what one is not looking for. Case construction bias usually begins with investigating police.294 Most often, a particular suspect is identified and evidence is elicited to build a case against that particular suspect. Evidence is only analysed to identify a class from which a suspect might be identified in the absence of a suspect.295 Criminal investigation therefore contains inherent caseconstruction bias against the suspect. It is not inquiry in the true sense of that word.296 In this environment, confirmatory evidence is likely to be gathered and exculpatory evidence either discarded or viewed as a mere obstacle to a successful prosecution. Bias created by police selecting and controlling the items to be tested is therefore substantial.297

The problem is exacerbated because the prosecution, though expected to reveal, is not expected to adduce evidence favorable to the accused.298 298 Velevski v The Queen (2002) 187 ALR 233, 245 (Gleeson CJ and Hayne J). See also Section 2.1.7.

This may be contrasted with inquisitorial systems, where law enforcement officials are expected to adduce evidence both favorable to and against the accused, police work is thoroughly checked by prosecutors, and prosecutors work is thoroughly checked by the court. In inquisitorial system criminal cases, review by a higher authority of the actions and decisions of a lower authority occupies a substantially more important place than the actual oral battle between the parties at the trial session.299 Overly close contact between police and expert300 risks infecting the expert with case construction bias.301 The current tendency to agency charges for forensic services may exacerbate it, as police will be particularly disinclined to send for analysis material that is likely to weaken their case.302

2.8.2 Confirmation Confirmation bias arises from accepting evidence favourable to a hypothesis and rejecting or ignoring evidence against it. It is a notorious pitfall for

financial investors.303 In the forensic setting, confirmation bias is a species of case construction bias. It is particularly likely to operate when other biases such as financial bias, group identity bias, and confused duty operate in tandem, as the whole machinery of expert investigation then leans towards a particular conclusion. In this setting, evidence against that conclusion is likely to be overlooked or dismissed as false or a mere nuisance.

In fact, [s]trictly speaking if you are trying to find evidence to support a foregone conclusion rather than following the evidence where it leads, you arent really inquiring.304 When it is no longer the reasoning which determines what the conclusion shall be, but the conclusion that determines what the reasoning shall be, the inevitable result will be that [people lose their] conception of truth and reason and come to think of reason as merely decorative.305 At undergraduate level, the centrality of pathology to medicine and importance of forensic pathology to justice should be emphasized. Professional ethics should be taught in their legal context. Students should

be educated on miscarriages of justice related to medical practice. During pathologist training, this education should be repeated. Forensic pathology research should be encouraged. For specialist pathologists, individual and laboratory participation in quality assurance programs, internal and external audit and continuing medical education should all be compulsory. This education should include instruction on acting as an expert witness. An approved expert witness list should be promulgated. Pathologists medicolegal duty should be mandatory. Case construction bias should be avoided and physical evidence preserved. Testifying beyond expertise should be unsatisfactory professional conduct and prejudiced pathologist evidence exposed. Legal reform may also greatly reduce the risk that unreliable pathologist evidence poses. Crucially, courts should test the reliability of pathologist Student number 203151064 7 0 evidence on a voir dire along Daubert lines before admitting it. Discretionary provisions of the Evidence Act should be employed as necessary to exclude unreliable pathologist evidence. Courts should not

simply defer to pathologist peers to qualify a witness. Pathologist evidence should be disclosed to opponents before trial. The prosecutions disclosure requirements should be strict. Courts should exercise their discretion to exclude the fact or opinion component of mixed fact-opinion evidence. Expert evidence should be able to be given in the same narrative form permitted by inquisitorial justice systems.1 Juries should be carefully instructed and cautioned about expert evidence. Judges should approve Bayes theorem and improve their comprehension of statistics generally. Biased experts should be openly criticised. Accused persons should have open access to government pathologists and forensic laboratories. Creating an independent statutory authority with power to re-examine facts and call new evidence when reviewing doubtful criminal convictions represents an essential safeguard if other measures to prevent miscarriage of justice fail. However, conferences between experts or single expert appointments should remain voluntary. If other reforms are implemented, courtappointed experts may not be necessary.2 They may in fact be inconsistent with the adversarial

3.1.8 Improper testimony by and improper examination of expert witnesses should be unsatisfactory professional conduct Breach of objectivity or exaggerating ones qualifications as an expert witness, as is apparently common in the United States,40 should be classified by the New South Wales Medical Board and RCPA as professional misconduct.41 Testifying beyond expertise fails to recognise the limits to ones professional competence.42 It has been the source of several miscarriages of justice.43 Testifying beyond expertise is already unsatisfactory professional conduct in England,44 but not in Australia. Making this a species of professional misconduct risks creat[ing] or exacerbate[ing] serious interprofessional tensions,45 potentially exposing the judiciary to greater .

Legal practitioners failure to expose unreliable expert evidence may reflect the serious scientific illiteracy of many.48 Australian barristers enjoy immunity from negligence for their in-court work.49 Bar Association Rules do not sanction barristers who negligently fail to discredit unreliable

evidence.50 Barristers who fail to discredit unreliable expert evidence should face similar sanctions to the pathologists who supply it, otherwise doctors may legitimately complain of being made scapegoats of a failed adversarial legal system.51 3.1.9 Prejudiced evidence should be exposed Colleagues who become aware that a pathologists evidence is prejudiced are ethically bound to report this to the RCPA and the New South Wales

Criteria additional to those of Daubert should be applied to assess expert evidentiary reliability in appropriate cases,58 while in others fewer criteria may require assessment.59 These criteria may be considered and tailored to each case using the broad relevance discretions of sections 135 and 136 of the Evidence Act. Courts should also rigorously apply section 137 in criminal trials. This is a powerful tool for protecting accused persons from wrongful conviction due to unreliable prosecution evidence. 56

3.2.3 Prosecutors duty to assist the defence should be strict In view of the imbalance of resources between prosecution and defence, including access to experts, prosecutors should have to call any witness who they are aware may assist the defence, as part of their overall duty to the Court to ensure a fair trial. Directions by the trial judge should only be considered sufficient to cure the disadvantage created by failing to call such witnesses in exceptional circumstances. The decisions of the majority in Velevski v The Queen that there is no prosecution duty to call a witness favourable to the defence unless the prosecution takes the witnesss official statement,77 and that appropriate judicial directions are quite capable of correcting prejudice to the accused caused by failing to call such witnesses,78 should therefore be expressly reversed by amending the

Criminal Procedure Act and Barristers and Solicitors Rules. 3.2.4 Mixed fact-opinion expert evidence should be limited The low rate of successful Daubert challenges by accused persons also applies to witnesses of mixed fact and opinion.79 Combining the role of witness of fact with witness of expert opinion presents inherent problems of evidentiary reliability. Where the combination is necessary, juries should be specifically alerted to the danger. The Court should have specific discretion to exclude either the fact or opinion component of the evidence. This may 77 Cf Velevski v The Queen (2002) 187 ALR 233, 245 (Gleeson CJ and Hayne J). 78 Ibid 274 (Gummow and Callinan JJ). 79 Risinger, above n 27, [132]. Student number 203151064 8 6 be achieved by amending court Rules and the Criminal Procedure Act or Evidence Act to provide this discretion. 3.2.5 Joint appointment of and meetings between experts should be voluntary Civil court rules promoting agreed appointment of single experts or conferences between party-appointed experts are unlikely to contribute significantly to evidentiary reliability in criminal trials. Adversarial system dynamics in criminal law render agreement between litigants improbable.

The prosecution and accused should be free to appoint single experts or conduct conferences between their experts by consent. However, making either measure mandatory is not recommended.