EXPERT WITNESSES IN THE DOCK

02-11-2006

False convictions based on dodgy evidence by so-called "expert witnesses" have called the legal system into question - so much so that this week,the Chief Medical Officer Sir Liam Donaldson announced new measures to ensure that those who give advice at trials in future are properly vetted by the NHS. Birmingham psychologist Dr Mike Drayton offers us his view, based onfrequent experience as an expert in court.

On a hot summer day earlier this year I found myself in the witness box of a Crown Court in the Midlands giving expert evidence in a murder trial. As I faced the prosecution barrister who was about to start his cross-examination of my evidence, I saw the glint in his eye and thought, “Why do I do this?.”. If you have ever given evidence in Court, especially a big trial, you will understand my nervousness.

My first experience of givingexpert psychological evidence was in 1997 and I have been doing so ever since. It is a job that many of my colleagueswant to avoid,so why do I do it?

Well, I think it's very important that judges and juries properly understand the psychological factors involved in a case, For example, in the case I mentioned earlier this year,the man in the dock had killed a close relative. He claimed afterwards that he couldn'tremember everything. After carrying out a detailed psychological assessment, I was able to explain to the court thathe had suffered with symptoms of Post Traumatic Stress Disorderafter the event,which included a post-trauma amnesia, When he said that he could not remember, he was telling the truth. This was important to his defence.

Most of my expert witness work is undertaken in the family Court, assessing and preparing reports on parents who have mistreated or neglected their children in some way. It is a complex and emotionally draining experience for all involved. At the centre of the whole process is the child or children. My job -and the task of the Court - is to protect these vulnerable children from any further abuse, neglect or mistreatment. I believe that I and my expert colleagues play an essential role in this process.

Expert witnesses and the family Courts have been prominent in the news recently. The Birmingham MP John Hemming criticised the Family Courts likening them here on The Stirrer to the “Witchfinder General” [link]. Earlier this week Sir Liam Donaldson, chair of the General Medical Council proposedchanges in how expert witnesses are regulated and used by the Courts.

These criticisms and comments have arisen following the case of Professor Roy Meadow, whose flawedevidence led to a number of prominent miscarriages of justice, the most famous being the convictionsof Sally Clark and Angela Cannings - both sentenced to prison formudering their childrenbut later cleared of any wrongdoing.

Despite these cases, I think John Hemming is absolutely wrong. Of course the Family Courts do make mistakes, and when they do get it wrong they devastate the lives of those concerned. However, such errors are very rare. In my experience,they are characterised by common sense, thoughtfulness and compassion.

The Family Courts, rather like social services, are often put in a very difficult position by society. If they remove a child from a family which is neglectful or abusive, they are ‘tearing the family apart'; yetif they leave the child with the family they are ‘incompetent'. I feel they getthis reaction because they remind us of a painful truth: that some families are characterised by violence and abuse just as others are kind and loving.

Sir Liam Donaldson wants to improve the way expert witnesses interact with the legal system. I agree with the sentiment,but I would ask how could one improve on or regulate someone like Professor Meadow? He was an eminent consultant paediatrician and academic with years of experience as an expert witness. If you needed an expert paediatrician one could not imagine a more qualified person than Professor Roy Meadow. Yet, he got it badly wrong. If he can make a mistake, what chance do the rest of us have?

Part of the problem lies in the nature of the legal system. In law, everything is black and white, right or wrong. There are few areas of grey. In real life nothing is black and white. As an expert witness I sometimes feel pushed into declaring a certainty that I just don't feel. The very notion of being called an ‘expert' leads to an expectation that you will know the answer, and often you don't. It is much harder to say “I'm not sure” than “Yes, I know”.

Professing certainty when you are not sure, leads to errors like those made by Professor Meadows. The pressure to be certain does come from the nature of the system but it is also a product of one's own vanity.

Really nobody is an expert in anything. Some of us have a lot of specialist knowledge but, at the end of the day we are fallible human beings who make mistakes, just like everyone else. As soon as this is acknowledged, our expectations of experts and the Courts can perhaps be realistic rather than idealised.