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An expert cannot

always choose

the work they are


Expert Witness Supplement Springr 2016

SJ 160/6



The speakers had two strong messages on

independence. First, don’t change your answer

because of who is asking the question. Second,

don’t try to be an advocate: that is the role of the


Lord Hughes argued that independent experts

are the most effective: ‘My guess is that most

advocates will tell you that a good expert is

usually very difficult to challenge so long as he

sticks to saying,“Look, I’ve been doing this all my

life; I am telling you x or y”, and he is clearly sure

about what he is saying... So long as he gives the

same answer whether it helps or hinders the

client, simply because he knows he is right, you

will rarely dislodge him, unless of course there is

a serious flaw in his reasoning. But conversely, so

soon as he starts to play the advocate, you have

usually got him.’

This was picked up again by Page when she

discussed building a relationship with the

solicitor. Objectivity may cost an expert the job

with some solicitors, she said, but she values

impartiality: ‘We don’t want you to be our

advocate. The experts who start arguing the case

are a disaster.’

Critical judgments are also increasingly

damaging: US lawyers now trawl the internet

to see whether an expert has been cited before

in a case.

Always on the same side

One expert asked our panel’s views on the ratio

of prosecution and defence (or claimant and

defendant) cases undertaken by an expert.

TimOwen QC replied that if an expert always

works for one side, then this is an obvious

question for any advocate to pursue; whether it

succeeds will always depend on how the expert


However, Holland said he would not hesitate to

instruct an expert who had taken a solid view,

from conviction, and so appeared on one side

more often. This can be safer, he argued, than

instructing an expert who has tried to take a

balanced approach and risks contradicting

evidence they have given in a previous case.

Of course, an expert cannot always choose the

work they are offered. One delegate had found

that after accepting her first case, she was

generally only offered cases for the same side.

But experts can spread their marketing widely

and refuse work that they feel ties them to one

side: forensic accountant Brent Wilkinson gave

the example of refusing defendant insurance


Judge Topolski concluded by warning those

experts with an unbalanced workload to be open

about it and to be prepared for questions on it.

He argued that when an expert is not prepared to

be frank about only accepting instructions from

one side, their reputation can quickly crumble in

the witness box.

Cognitive bias

Dr Itiel Dror provided a fascinating insight into

our own unintentional bias, with examples of

cognitive bias from court cases, research, and

exercises on the audience.

Dr Dror argued that even hardworking,

dedicated, and competent expert witnesses are

not as objective and independent as they like to

think. Experts, like everyone else, are affected by

context and the shortcuts that enable our brains

to work efficiently. But we can take steps to

minimise this unconscious bias.

Experts should not be exposed to irrelevant

information about a case, Dr Dror explained.

Lawyers like to give experts background

information, but this can affect the expert’s

decision and leave them open to questioning on

how the information influenced them.

Police officers are also guilty of this: a forensic

linguist attending the conference complained

that police officers liked to give him information

about the victim or defendant that he did not

need to know, and which could potentially

damage his objectivity.

Dr Dror urged experts to decide what they

needed to know and shield themselves as much

as possible from irrelevant information and

pressure by asking solicitors not to give them

unnecessary details and reminding them that this

exposure could undermine their evidence. This

would improve experts’contribution to the court.

Awareness of cognitive bias is increasing in the

legal world. In October 2015, the Forensic Science

Regulator published the guidance ‘Cognitive bias

effects relevant to forensic science examinations’.

Dr Dror has provided training to the senior

judiciary, and cognitive bias has been raised

in a number of cases.