A recent story on a New Zealand news website highlights the poor accuracy of press reporting, if any further evidence were needed. It also draws attention to a report by a lawyer and psychologist which makes a number of familiar recommendations regarding expert evidence.
The headline bears little relation to the contents of Henderson & Seymour’s report which is the basis of the story. The headline is drawn from one paragraph in 167 pages and casts an unjust slur on experts called by the defence. The headline suggests an agenda.
The report concerns experts who testify in both the criminal and Family Courts in New Zealand regarding child abuse and neglect, highly controversial and emotive areas of forensic practice far removed from the ‘gold’ standard of DNA profiling.
Child abuse cases are prone to experts using the witness box to promote their own theories as demonstrated by the case of the paediatrician Professor Sir Roy Meadow. Professor Meadow gave evidence for the Crown in a number of trials of mothers charged with killing their infant children. He relied on flawed statistical analysis and flawed science; a theory he invented [see Meadow R. 1977. “Munchausen syndrome by proxy (MSbP). The hinterland of child abuse” Lancet 2 (8033): 343–5.] is considered by many medical practitioners to be without scientific foundation. Australia and the UK have established the legal precedent that MSbP does not exist as a medico-legal entity. Indeed, the scientific foundation of expert opinion offered in child abuse cases appears to be a common issue as evidenced by a quote from R v Henderson [2010] EWCA Crim 1269.
“Can the witness point to a recognised, peer-reviewed, source for the opinion? Is the clinical experience of the witness up-to-date and equal to the experience of others whose evidence he seeks to contradict?”
The report of Henderson and Seymour is based on ‘qualitative empirical research’; gleaning the opinions of expert witnesses and validating those opinions by reference to lawyers. It is a useful and scholarly review particularly if the areas of forensic practice covered are of interest. However, it contains little that is new, omits some important areas of scholarship on the evaluation of scientific evidence and bias, recycles prosecutorial ‘myths’ (defence disclosure delays) and its recommendations have a familiar ring.
As I have written elsewhere (e.g. Dominion Post, Letters, 26/12/12), justice is best served when the expert evidence is relevant and expert witnesses are objective, impartial, competent, possess practical experience in their specialism and understand their role. Unfortunately that is not always the case. The remedy lies with the experts.
Other issues such as the often gross inequality of arms between the defendant and the State are matters for all the stakeholders.