The role of the expert witness in the adversarial legal system
So often we hear the legal profession berate expert witnesses as "hired guns" whose bias is for sale. While this may be relevant to a small minority of "experts", the majority do their job with integrity and in an ethical fashion. An advocate for a proposition will not call a witness to support a claim if it is clear that the witness holds an opposing view. It follows that the bias emanates from the lawyer, not the witness. A witness without a formed view cannot truly claim to be an expert, as the expert should have sufficient knowledge to form an opinion. Once that opinion has been expressed and justified, the lawyer will select the most persuasive and cogently constructed opinion with which to convince the court. The expert witness must commence the assessment without bias or favour; must collect her or his history and examination of the relevant material; evaluate all the facts and evidence provided for scrutiny; seek additional material where there appears to be a deficiency; and draw on all of these data to formulate an opinion in response to questions posed by the instructing lawyer. The expert need not support or refute the stance proposed by the lawyer but the lawyer will only use those opinions favourable to the lawyer's case and hold the remainder as privileged where even that option prevails. It follows that the role of the expert is to provide a well-prepared analysis; it is the lawyer who is paid to be biased.
Journal of Law and Medicine
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