Slice of life: The trials of being an expert witness

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McGill Reporter
March 9, 2000 - Volume 32 Number 12
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Home > McGill Reporter > Volume 32: 1999-2000 > March 9, 2000 > Slice of life: The trials of being an expert witness

Slice of life
The trials of being an expert witness


ILLUSTRATION: TZIGANE

| Whether they're recruited by the prosecution or the defence, what these academics say can have far-ranging impact.

In some cases, their testimony can help balance the scales of justice.

To ethicist Margaret Somerville, a professor at the McGill Centre for Medicine, Ethics and Law and McGill's Gale professor of law, providing expert testimony is a duty that can help contribute a deeper perspective to issues faced in courts. Legal battles, after all, often bleed beyond courtrooms.

Indeed, touchy court topics can create precedents that affect the general rules of law. "Courts are the Acropolis of the twenty-first century," she says, "where people are meeting and making decisions that will determine what will be the basic rules in society."

While it's easier for academics to "chirp" or publish their views on the sidelines, she says, occasionally agreeing to be an expert witness is a responsibility. "Everybody's voice is important," she stresses, "to give (courts) a broad representation of views."

Psychology professor Maggie Bruck, one of North America's top experts on the credibility of children's testimony, agrees. "As scientists, it's vital that we give something back to society," says Bruck, currently on leave at Johns Hopkins University.

Providing expert testimony can even help foster future research. "Some cases have provided the impetus for my applied work," Bruck says, "(since) cases can raise all kinds of issues for which there are no answers."

Being an expert witness isn't always easy. It can be time-consuming, requiring experts to spend hours in court and hours more to write reports. Somerville, who has testified in two controversial cases, says being an expert witness is rarely pleasant.

In one Toronto trial, which examined whether the Red Cross was morally responsible for compensating victims of its tainted blood scandal, she was cross-examined on her résumé by 10 lawyers — for an entire day — before sharing her views. "My CV is over 100 pages, and they went through it line by line, which was a bit ridiculous," she recalls. "I felt like I was wrung through a washing machine."

Of course, it doesn't help that the debate rages on about what constitutes an ethicist. "It's a very volatile specialty that can be up for grabs," she admits, and establishing her credentials turned out to be challenging. "Even as a lawyer, I found being under the gun a stressful experience."

Sociology professor Morton Weinfeld, an anti-Semitism and ethnic relations specialist, concurs. Being an expert witness is both intellectually challenging and gruelling. "It's like an oral defence of a PhD thesis against hostile enemies."

But law professor Yves-Marie Morissette says questioning an expert witness's credentials is crucial to the judicial process. "Since expert witnesses often have determining roles in trials," he says, "they must be able to defend their point of view."

In subjective fields such as ethics or what constitutes racism, he says, litigators need to determine how experts developed their thesis. "Lawyers have to ask experts, 'What gives you the right to say what you say?' before their testimony can be taken as fact."

Another reason for questioning an expert's validity is to avoid public cynicism. Most trials, says Morissette, include experts for the defence and prosecution who ultimately contradict one another.

Putting an expert's testimony under a microscope helps shed light as to which side's story is more plausible.

An important process, because courts rarely conclusively get to the bottom of cases, he says. "Most (judgements) are given on a 60 per cent to 40 per cent split."

Considering the potential difficulties of trials, Bruck always reviews all the facts before agreeing to testify or produce reports. "I only participate when I feel there's been a miscarriage of justice," she says, adding that the 30 cases she participated in were appeals.

Thoroughly examining the merits of her cases is also crucial, Bruck says, since most of the trials she has worked with dealt with everything from sex abuse to alleged satanic sexual rituals involving children. She needs to be sure of what she's getting into as these cases are morally exhausting.

In fact, her first trial left her sad, depressed and physically ill. "After that case I swore I would never testify again."

So why does she continue? "Because nobody else wants to do it," she chuckles, adding that there are only 20 qualified North American experts in her field. "And, by and large, most people don't want to be expert witnesses in these kinds of cases. It's dirty work."

In some cases, Bruck is also invited to testify in general terms on her specialty, and doesn't need to review the facts. "That makes for a better expert witness," she says, "since I'm much more neutral."

But neutrality isn't a prerequisite. When Weinfeld testified in a recent case for the British Columbia Human Rights Tribunal, which accused Vancouver columnist Doug Collins of allegedly writing an anti-Semitic article that went beyond provincial legislation on what's acceptable, he came on board because he was riled.

"It was a case where my own personal convictions complemented my role as an expert witness," he recalls, "and the column was so unambiguous in its anti-Semitism."

Professor William Rowe, director of the School of Social Work and an expert on sexual abuse, has testified and produced reports for the prosecution or the defence in 20 trials, including Newfoundland's Mount Cashel sex abuse trial. Although he doesn't enjoy the work, he says, he too agrees to participate when his knowledge can help right a wrong.

Just last Monday, he testified in another Newfoundland case involving an insurance company that's arguing it's not financially responsible for the sexual abuse of children conducted by archdiocese priests in the 1950s and '60s. The insurer claims that responsibility falls on the church, given it knew many of its priests were homosexuals.

"I was happy to go forward and refute that claim," Rowe says, "since it could set a dangerous precedent if it's accepted. And (research) has shown those kinds of allegations don't hold water."

But since these cases can attract huge press exposure, Rowe says, they can be tough for experts. "Being in the incessant glare of the media is the worst part (of testifying)."

Trial fatigue is one reason Bruck always takes a few months off before being a witness at a new trial. Yet, despite her intentions, that doesn't always work. At times she has agreed to participate in cases, only to find they are tried years later.

There are also cases she flatly refuses. "I never work for rich people," she says bluntly. "Rich people can afford good lawyers and know how to work through the system."

The disadvantaged or middle class, however, don't have the same resources. "(They) probably wouldn't need to appeal if they had had proper representation in the first place."

Somerville prefers similar fights, "where 'little people' face David versus Goliath battles and going to court is a last-ditch effort."

Bruck says an additional reason for choosing cases carefully is that they can be long and boring. "There were some where I wanted to jump out of the window."

In those instances, remaining alert is essential. "So you don't give away too much, or go off the rails, and provide rabbit trails that the other side can jump on," Rowe says.

Sometimes, Somerville says, being a witness can also bring challenges outside courts. After testifying in a euthanasia trial last spring, she says she was snubbed by a colleague, sympathetic to the other side, at a cocktail party. "That hurt me a lot," she says, "and showed that being an expert witness is not without its personal costs."

In other instances, she says, expert witnesses like doctors face professional pitfalls if they are castigated in court reports. "That can be dangerous for a person's reputation."

Under stressful trial conditions, says Rowe, providing solid, credible testimony can be difficult for academics, "even through we are used to having our views challenged or criticized." Yet, illuminating a courtroom issue, he adds, "can be exhilarating."

As for cases where testimony can help send perpetrators to jail, Rowe says, he doesn't lose sleep over them.

"The judge and jury," he says, "are the ones who make the ultimate decision."

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