A case of paying for evidence

3 June 1994
The Independent
_F Robert Verkaik reports on the increasing use of expert witnesses who provide specialist courtroom testimony.

The decision last month to prosecute the forensic expert involved in the Stefan Kiszko case has highlighted the importance of the use of expert witnesses by the legal profession. Mr Kiszko, a 41-year-old Inland Revenue clerk, was convicted in 1976 of the murder of 11-year-old Lesley Molseed, in a case prosecuted by the now Lord Chief Justice, Peter Taylor QC, and defended by former Home Secretary David Waddington. In 1992, he won his appeal after serving 16 years in prison, but died last year. Ronald Outteridge, the police scientific expert in the case, is the first forensic scientist to face a charge of intending to pervert the course of justice.

Courtroom expertise is a growing industry, encompassing organisations such as the British Academy of Experts and the Forensic Science Society. Lawyers and their clients recognise the enormous difference an expert can make to the outcome of a case.

However, many lawyers believe that trial by expert carries the danger that the side with the most expensive - or least honest - expert will win the case. Lord Woolf's proposed shake-up of the civil courts would preclude this by using court-appointed expert witnesses.

Terry de Lury is a practising barrister who has also been called as an expert witness in thousands of cases. He believes that too many expert witnesses are susceptible to "coaching". They forget, he says, that their primary duty is to the court, not to the instructing side.

He believes that if expert witnesses had remembered this rule, many miscarriages of justice - where police expert evidence had been accepted without question - could have been avoided. "Experts must tell the whole truth, no matter how badly it reflects on those instructing them." Many regard themselves as "semi-advocates", who can make money out of working as a professional witness, he claims. "They are the only people in the courtroom upon whom the court will rely in coming to a decison on something it knows nothing about."

The Law Society advocates equality between the parties' experts, particularly in criminal cases. Diane Burleigh, head of court business at the society, says: "The state does have far greater resources than are usually available to the legally aided defendant. We would like to see a better balance there." The society believes that this is best achieved by increased funding for the instruction of experts.

The case of Joy Gardner, who died while being forcibly deported from her north London flat, has already involved the instruction of seven pathologists. Her case emphasises that there is no strict limit to the number of experts solicitors may consult in preparation of a case.

A solicitor considering the use of expert evidence in a case may want some guidance. The Law Society, however, apart from providing a list of expert witnesses, has no specific policy regarding the use of experts by its members. The lack of guidance in this area could place justice in jeopardy, when guilt or innocence is determined by one expert's credibility being pitted against another's.

"We don't interfere with solicitors as to how they run their cases," says Diane Burleigh. "But we would remind them that they do have a duty to the court not to drag out trials. They also have a duty to their client not to cost them too much money, and to the legal aid fund not to waste taxpayers' money."

In the end, it is a balancing act for the solicitor to decide what is in the best interests of the client. "If that means the solicitor ought to have three expert witnesses rather than one then that's a matter for him," she says.

Mr de Lury points out: "It's not too wise to shop around for an expert who is sympathetic to your cause, because if he is saying only what you want him to say then the opposing lawyer should be able to tear him apart."

Nevertheless, pressure on expert witnesses does frequently come from those preparing the case. "Some lawyers will say to them: `Please confine yourself to answering the questions that I want answered,' " Mr de Lury says. "Experts ought to be prepared for these attempts to coach them, but they should never conceal anything."

Mr de Lury acquired his understanding of the relationship between the legal profession and the expert after spending many years working with lawyers such as the former chairman of the Bar Council, Anthony Scrivener QC. "We toured the country in the late Sixties working on trade description prosecutions, when Tony would ask for me as the expert witness because I was reliable," he says.

He accepts that often the better the expert, the less use he or she will be to the instructing side. The adversarial system means that time and money are wasted when experts are quite often needlessly set against each other.

Mr de Lury would like to see more lawyers getting their experts to meet "without prejudice" to thrash out their differences before going into court, where the partisan atmosphere can help to manufacture disagreements.

Complicated cases requiring in-depth expert opinion can confuse judges as well as juries. Mr de Lury suggests that judges could more frequently exercise their power to appoint lay assessors to help the court by using them as "reference books".

Lay assessors work in the same field as the experts and can help the judge determine what weight to attach to the expert evidence - although the judge remains free to accept or ignore the advice. The principle is used to some extent in the official referees court and in arbitration matters.

"The trouble with professional expert witnesses is that they have become remote from the latest developments in their field, and are simply experts in giving expert testimony in the courtroom," Mr de Lury says.

Once an expert has been accepted by the court - and money can buy the very best - the outcome of a case can be decided before a single word has been spoken in advocacy.

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