Trials and Tribulations: Social Science Evidence, Expert
Witnesses, The Voice of Authority and the Discourse of Ideology in the
Courts
| Author: |
N Kathleen Sam Banks
Senior Lecturer in Law, University of Huddersfield
|
| Issue: |
Volume 6, Number 4 (December 1999)
|
Contents
- What
do they know?
The need for expert, [1] often social science,[2] evidence in criminal law cases is well-known. Indeed, for law
to resort to outside assistance is hardly a concept foreign to the
shores of
England and Wales. As early as 1554 Saunders J said:
If matters arise in our
law which concern other sciences or faculties we commonly apply for the aid of
that science of faculty
which it concerns. This is a commendable thing in our
law. For thereby it appears that we do not dismiss all other sciences, but
our
own, but we approve of them and encourage them as things worthy of
commendation.[3]
- Expert evidence is admissible to "furnish the court with
scientific information which is likely to be outside the experience and
knowledge of a judge or jury."[4] Without this kind of evidence, women accused of murdering
their abusive partners, for instance, might appear to be impulsive killers
who
act upon the slightest provocation or opportunity. Evidence is needed to put
these actions into perspective: to address
such genuine and natural questions
as, "If it was as bad as she says it was, why didn't she leave?" The
development and judicial
recognition of battered woman syndrome[5] in domestic violence[6] cases has lent important support for and insight into the
particular psychological forces at work in these cases. Concurrent with
this
development has been a growing body of legal literature about domestic
violence and battered woman syndrome, and the application
and use of this
evidence in court. This literature covers a wide expanse of legal territory,
from that which measures and examines
data concerning the prevalence of this
type of violence against women,[7] assesses the availability, utility and implications of
criminal law defences open to women who kill their abusive partners,[8] to analyses of the impact of class and culture on domestic
violence.[9]
- I approach the use of evidence of battered woman syndrome from a somewhat
different angle. I am interested in the use and interpretation
of this kind of
expert evidence as it is used in criminal cases, and how this material is
received, shaped and transformed
from one sort of information into another. In
particular, I am curious about how some information is privileged and
legitimated
by the courts while other information is discounted and rejected,
and how "scientific fact" is thus transformed into "legal fact",
the only kind
acceptable to the court. Using the example of expert evidence in domestic
violence cases, in this paper I examine
the use of social science evidence in
court from a legal and ideological stance, and demonstrate how this
information is manipulated
and transformed by law and the trial process. This
is not an examination or critique of a defence of battered woman syndrome
itself, which has been done elsewhere.[10] Rather, my interest is in what the use of expert evidence
can tell us about the courts and the ways this information is received
and
interpreted.
- While most of the law I refer to is sourced in England and Wales, I draw
on the law in other jurisdictions such as Canada, Australia
and the United
States to assist me in demonstrating law's hegemony. Indeed, it may be
observed that local laws are often reflective
of wider, more universal
principles and ideologies. It is my intention to make a few general points by
reference to some specific
examples as found in the use of expert evidence in
trials. And those points are these: that law and science are engaged in a
struggle over what constitutes the truth and who ultimately determines what
the truth is; and that in furtherance of its campaign
to be the ultimate
arbiter of the truth, law employs a number of mechanisms to control both
access to and interpretation of
information within its own domain.
- A woman who kills the partner she says
was abusing her may wish to put forward in her defence evidence that she had
been battered
and suffered battered woman syndrome. If successful, this
evidence may go some distance in explaining her actions and could result
in
her being acquitted of murder, though possibly convicted of manslaughter on
the basis of raising the partial defences of
provocation[11] or diminished responsibility.[12] These defences leave a woman with the choice of casting
herself as bad ("I was provoked and lashed out") or mad ("I'm mentally
unstable"), neither of which may accurately or adequately capture her reasons
for her actions.
- Self-defence, as a justification[13] to the charge of murder, often seems unavailable because the
facts and circumstances of the killing may not easily correspond
with
self-defence as it is traditionally constructed. For example, a woman might
kill her abuser in a period of relative calm
after a battering rather than
during, the timing of which tends against the more traditional view of acting
to protect herself
or prevent a crime. If the event is over, how can it be
said that she is protecting herself? Self-defence as it is traditionally
interpreted is more accommodating of actions done in the heat of the moment.[14] Indeed, waiting until the abuser is asleep or has his back
turned and is walking away appears calculating, opportunistic and malicious
-
at first blush the very opposite of self-defence and likely questionable to a
trier of fact attempting to understand why
the defendant did what she did.
- Similar difficulties arise with the partial defence of provocation. The
scenario outlined above might not fit within the usual
provocation template of
a "sudden and temporary loss of self-control".[15] This is illustrated by the rejection of provocation in such
a "cumulative provocation" situation in R v Duffy, itself concerned
with a
woman who killed her batterer. The Court of Appeal quoted with approval a
statement by Devlin J that "a long course
of conduct causing suffering and
anxiety are not themselves sufficient to constitute provocation."[16] The Court was further at pains to distinguish the differing
motives for the defendant's actions, stating that "circumstances [such
as a
history of abuse] which induce a desire for revenge are inconsistent with
provocation".[17]
- This idea was echoed in R v Thornton,[18] where Beldam LJ said that "the sudden and temporary loss of
control" requirement was "just as, if not more important"[19] in cases of cumulative provocation in order to distinguish
between those who killed in the heat of the moment and those who "had
time to
think and reflect and regain self-control"[20] and then strike the fatal blow(s).
- Importantly, the strict
view in Duffy and Thornton has been tempered by findings in R v Ahluwalia.[21] Here, the Court of Appeal held that in such "slow burn"
cases, a delay or "cooling off period" between the battering event and
the
killing would not necessarily undermine a defence of provocation. Rather,
Taylor LJ said, it was for the jury to interpret
the meaning of the time
between the actions of the victim and the defendant's response.[22]
- In each of these cases it might be desirable to present
expert evidence in order to explain the effects on the woman of living
with a
battering partner, why she finally killed her abuser and to assist the jury in
the interpretation of any delay between
the batterings and the final fatal
acts of the defendant. The expert evidence will almost certainly be
psychiatric evidence.
In cases where the defendant pleads diminished
responsibility, medical evidence is a necessity[23] and a jury can not return a verdict of manslaughter on the
ground of diminished responsibility absent medical evidence of an abnormality
of the mind arising from one of the causes specified in the legislation. It is
here at the intersection of sense and common
sense that expert evidence and
domestic violence collide. The evidence is adduced in an attempt to answer the
"why didn't she
leave?" question and to dispel commonly held assumptions and
myths about women and the lives they live with their abusive partners
who
batter them. These include the beliefs that in fact the beatings were not as
bad as she said they were (otherwise she would
leave), or that she must have
enjoyed them in some masochistic way (otherwise she would leave).
- Yet the
evidence is admissible only if it relates to something that the lay person
would not be able to understand unaided.
Common sense surely tells someone to
leave a situation that is harmful to her - doesn't it? Why is that so
difficult to understand?
The difficulty with defences such as self-defence and
provocation is that they are predicated on masculinist norms of appropriate
response to violence - the "reasonable man" or "ordinary person".[24] But to the battered woman, reality as she senses and
experiences it may be far different from that of a person who has not lived
that particular life. Expert evidence is needed to displace a juror's "common
knowledge" or "common sense" where their own
"logic, drawn from their own
experience, may lead to a wholly incorrect conclusion".[25]
- Thus, absent an understanding of the dynamics of battered
woman syndrome at work in domestic violence, jurors would be unable to
comprehend why the defendant stayed in the situation when exit was so
obviously logical, necessary and apparently simple (just
leave). Of course,
the necessity of bringing an expert into court to explain women's experiences
says much about just who the
law has in mind when it conceptualises an
"ordinary person".[26]
- The use of evidence of battered woman syndrome to shift commonly held
myths and misconceptions about the lived experiences of women
raises two
overlapping areas of investigation. One is the use of expert, scientific
information in the courts and how this
is interpreted. The other is the
interrelationship between law and science, the claims they make to truth and
legitimacy, and
the struggle for territory between the two. Any claim to
objectivity about human behaviour is open to question and challenge:
law's
such claims are certainly so. These issues will be examined in the next
section of this paper. As will be shown, law
has its own interpretation of
information that is quite independent of any scientific information and will
use it for its own
purposes.
- Science has long
laid claim to universal, objective truths, epitomised by the 17th-century
writings of Isaac Newton and the
triumph of the rationality of science over
medieval superstitions. Newton's Philosophiĉ Naturalis Principia Mathematica[27] sought to demonstrate that dispassionate rational thought
was a better way to achieve understanding than relying on impressed
opinion.
He reasoned that nature was more machine than organism, and that natural acts
such as the orbit of a planet were calculable
rather than outgrowths of
mystery or the actions of ancient gods.
- At the heart of this reasoning was a
faith in the human intellect which, properly applied, was capable of seemingly
infinite
understanding and could expose ideas to experimental verification.
That ideas were capable of verification gave rise to the belief
that rational,
objective, universal truths existed and need only be "found" or discerned by
the superior intellect of reason
that separated the subject from the object.[28] Therefore, the use of such reason, in combination with a
researcher unhindered by his or her own beliefs and assumptions, meant
that,
first, a "correct" or "right" answer existed, and second, that it was possible
to find the "right" or "correct" answer
to any given scientific question.
Science was thus endowed with the mantle of objectivity, exactness, consensus
and neutrality.[29]
- This, then, gives life to the compelling image of a
scientific "expert", a person skilled in rational scientific methodology and
endowed with authority,[30] coolly and dispassionately hypothesising, testing, verifying
or refuting theories and giving legitimacy and validity to particular
scientific "facts".[31] These thus become science's holy grail of "the truth", and
science was seen as representing a superior form of knowledge.
- Yet this
confidence in the rationality of science and the legitimacy of "the truth"
obscures important questions about science's
claims to neutrality and
objectivity. For one thing, the sciences - including social sciences - are as
fragmented and pluralistic
as law or any other field of intellectual inquiry
and thus any claims to consensus of opinion ought to be received with some
degree of scepticism. This fragmentation and lack of consensus is readily
apparent in trials that feature a so-called "battle
of the experts", where two
opposing expert witnesses contradict each others' findings to varying
degrees.[32]
- Interestingly, the adversarial process itself may also serve
to undermine any consensus that does exist within the sciences: Adversary
procedures are indeed a wonderful instrument for deconstructing "facts", for
exposing the contingencies and hidden assumptions
that underlie scientific
claims, and thereby preventing uncritical acceptance of alleged truths. The
adversary process is much
less effective, however, in reconstructing the
communally held beliefs that reasonably pass for scientific truth.
Cross-examination,
in particular, privileges skepticism over consensus. It
skews the picture of science that is presented to the legal fact finder
and
creates an impression of conflict even where little or no disagreement exists
in practice.[33]
- Moreover, scientific "facts" are themselves the product of
social construction. In a direct refutation of Newton's belief in the
rationality and objectivity of science, the facts that scientists produce and
present to the world are not simply objective
observations of the mysteries of
nature. Rather, scientific "facts" are produced by human agency through the
institutions and
processes of science, and hence they invariably contain a
social component...Observations
achieve the status of 'facts' only if they are produced in accordance with
prior agreements about the rightness of particular
theories, experimental
methods, instrumentation techniques, validation procedures, review processes,
and the like. These agreements,
in turn, are socially derived through
continual negotiation and renegotiation among relevant bodies of scientists.[34]
- In other words, in science, as with so many things, all is not as it
seems, and truth is contingent on certain factors such as
experimental or
interpretive conventions. Judges or jurors, as the "finders" of fact, become
participants in the social construction
of science, and help shape an image of
reality that is some distance removed from the neutrality and objectivity that
science
claims.
- The relatively rapid rise and decline of absolute faith in the reliability
of DNA evidence provides a good example of the contingency
of scientific
truth: Eight years ago [in 1989], it was celebrated as 'the single greatest
advance in the 'search for the truth,'
and the goal of convicting the guilty
and acquitting the innocent, since the advent of cross-examination. Six years
ago, it
was endorsed by the U.S. Congress's Office of Technology Assessment.
Four years ago, it received a mixed blessing from the National
Academy of
Sciences. Three years ago, the Arizona Supreme Court held that it was
erroneously admitted into evidence in a brutal
child sex-murder case. Last
year, it was the centerpiece of the notorious murder case against O.J.
Simpson. This year, the
National Academy issued a second report on it, and the
Arizona Supreme Court revisited it.[35]
- Initially, DNA evidence of "genetic fingerprints" seemed
conclusive evidence of identity, with the chances of two unrelated individuals
having the same multilocus genotype ranging from hundreds of thousands to
several million to one. Thus, this particular piece
of evidence appeared to be
a powerful weapon in the identification armoury and readily seemed to provide
proof of identity
beyond a reasonable doubt.[36]
- But the retreat from unbounded faith in DNA evidence in a
reasonably short period of time has been dramatic. One of the controversies
and scientific disputes about this evidence focuses on the method of testing
the sample. Different DNA testing laboratories
use different methods for
sample testing, with the implication that different methods may yield
different results and conclusions.
Another dispute centres on the procedure
for calculating the frequency with which matching profiles are present in a
random
sample of the general population, known as the "random match
probability". Again, differing methods of measuring and interpreting
the
resulting data may lead to the belief that DNA evidence is far less conclusive
than originally believed.[37] The impenetrable fortress that this sort of evidence was
believed to be appeared to leave open many windows for error to enter.
- Despite controversy in methods of testing and interpretation of results,
science still maintains its aura of authority as oracle
of "the truth" with
respect to certain types of information and evidence. Disputes over the
interpretation of scientific evidence
do little to challenge science's overall
superior claim to certain information. Indeed, if anything, they tend to
enhance the
claim by science that only science can properly deal with such
difficult matters. Disputes, then, are disputes about meaning,
not underlying
fact.
- There remains a dogged belief in the rationality and objectivity of
science and the existence of scientific facts based on indisputable
truths. In
part this is achieved by science establishing dominion over certain types of
information and holding itself out
as the only true source of verity. Science
makes the claim that its specialised knowledge gives it privileged access to
certain
facts. This is assisted by law, which permits scientific expert
witnesses to testify precisely because law acknowledges that science's
expertise gives it access to privileged facts and respects its knowledge of
autonomous disciplines beyond law's ken. Law thus
admits science into its own
realm for the specific purpose of providing information not otherwise
accessible.
- However, at the same time that law recognises science's authority, law is
also careful to limit the encroachment of science into
law's domain. Law
achieves this through rules specifically designed to address expert evidence,
its admission and use, and
by the selective interpretation of the actual
evidence presented. In so doing law asserts its own claims to authority and
legitimacy
and attempts to establish itself as the true oracle. Thus, at the
heart of the relationship between law and science is a border
dispute between
the two disciplines in a struggle over the territory of knowledge and
information.
- Law uses a variety of mechanisms to control access to its own domain.
Then, once information is permitted within law's territory,
law also
manipulates that information to its own ends. At one level, access is
controlled by the rules of evidence governing
the admission of certain
information: information must pass certain legal muster before it can be
"properly" admitted into
evidence. At another level, law maintains its
hegemony over knowledge and the use of information through rules of
interpretation
designed to make law appear to be a neutral, objective oracle
or diviner of "the truth". The expert evidence rule as discussed
earlier is
but one of the ways in which law controls the gates to its kingdom. Firstly,
expert evidence cannot come to court
under its own power - it must wait to be
invited. That is, expert evidence may be admitted only where the subject of
the inquiry
raises issues calling for expertise or that is beyond the
knowledge of the judge or jury. Evidence from expert witnesses must
of course
pass the legal hurdles of appropriate expertise[38] and relevance.[39] The expert evidence rule is itself an exception to the
opinion evidence rule, which states that in general, opinion evidence is
inadmissible:[40] a witness may only testify to facts he or she personally
actually perceived, and not to any inferences drawn from those facts.[41] Once admitted, the weight accorded to expert evidence is
entirely a matter for the finder of fact, which can, as with any kind
of
evidence, accept all of it, some of it or none of it.
- This latter point emphasises yet another of law's controlling mechanisms.
Witness credibility and reliability is a matter for the
court to decide: the
finder of fact will determine whether, and to what extent, a witness's
testimony is to be believed and
relied upon. Credibility and reliability
sometimes hangs on issues that have little or nothing to do with actual law
and everything
to do with appearance. In this sense, the expert is both
witness and an exhibit, to be assessed and judged. In an account of her
experiences as an expert witness in Canadian courts and tribunals, Professor
Valverde describes the dilemma she faced in literally
appearing as an expert
in gay rights cases:
One of the most humiliating moments in my career as an
expert came when I caught myself changing my outfit over and over again
before
a human rights hearing, thinking all the while about how best to satisfy law's
desire. Should I wear a dress? No, not
academic enough. Should I wear this
jacket? No, too masculine. Did I own any items of clothing that were
sufficiently authoritative
but still non-masculine? As I critically evaluated
my wardrobe I realized that I was acting like a rape victim who worries that
the clothes she wears to court will speak louder than her words. I then
realized that I was not just an expert; I was also
an exhibit. [42]
- Appearance - and particularly clothing - retains a curious hold over
credibility in ways that have nothing to do with the veracity
of a witness's
testimony. One judge's advice to expert witnesses appearing in court makes
this point explicitly: Obviously,
a neat, poised appearance and courteous
disposition will also go far towards indicating credibility as a witness?
Conversely,
a sloppy appearance or loud, disrespectful behavior will be likely
to produce an unfavorable impression upon the court. When this
occurs, one's
testimony may not be lent as much credence as it might merit, which result
might ultimately be harmful to the
individuals involved in contested cases
where there is conflicting evident.[43]
- As these passages indicate, credibility is enhanced if one
"looks professional". But why should this be a factor? Surely whatever
a
witness wears has nothing to with the truth of their testimony or evidence.
Rather, dress is imbued with all sorts of signifiers
indicating a sometimes
bizarre combination of authority, responsibility and deference, as illustrated
Professor Valverde's
comments above, manifested as "respect for the court". [44] Thus, a witness who declined to show the proper respect for
the court would not be taken as seriously as one who did. This is
yet another
example of law exerting its dominion over those who appear before it and
manipulating behaviour to its own ends
to ensure that it is taken seriously.
- Expert evidence in criminal cases[45] may be further constrained by the ultimate issue rule.[46] This rule seeks to prevent an expert witness from expressing
his or her opinion on an ultimate issue - that is, the very issue
which the
court is attempting to determine. Thus, a witness may give testimony as to
whether, given certain variables such
as body weight and units of alcohol
consumed over a specified time, a driver would have more than the legal limit
of alcohol
in her blood while driving. However, the issue of whether in fact
the driver was driving while under the influence remains a question
for the
judge or jury. At the heart of this rule is the danger that the witness may
usurp the function of the factfinder, especially
in jury trials: "witnesses
are called to testify, not to decide the case."[47]
- There is considerable criticism of the ultimate issue
rule,[48] not the least that fears that the expert will usurp the
jury's job are undermined by the fact that a jury is free to reject any
part
of the expert's evidence, and that conflicting expert testimony points to
greater uncertainty rather than confidence in
the expert's testimony.[49] In any event, the rule is inconsistently applied and in
large part ignored.[50] Lord Parker CJ observed that [t]hose who practice in the
criminal courts see every day cases of experts being called on the question
of
diminished responsibility, and although technically the final question 'Do you
think he was suffering from diminished responsibility?'
is strictly
inadmissible, it is allowed time and time again without any objection.[51]
- There is an additional fear that the expert's evidence may play an unduly
dominant part in the jury's decision-making because of
the "aura of science"
lent to the evidence and by the witness's status as "expert". Indeed, the very
presence in court of a
witness labelled an "expert" shrouds them with an
authority and credibility which they may not necessarily possess but that the
jury may believe she may have. On this point, Lawton LJ in R v Turner said of
evidence that:
In such a case if it is given dressed up in scientific jargon
it may make judgment more difficult. The fact that an expert witness
has
impressive scientific qualifications does not by that fact alone make his
opinion on matters of human nature and behaviour
within the limits of
normality any more helpful than that of the jurors themselves; but there is a
danger that they may think it does.[52] [emphasis added]
- In other words, law retains the ultimate power to determine what to
believe, irrespective of who says it. Law has established these
rules of
evidence in order to defend and maintain its own claims as the ultimate
arbiter of truth. Moreover, law makes the
rules by which law plays. Thus,
scientific "facts" are inadmissible unless they are beyond the understanding
of the finder
of fact, and are presented by an "expert" appropriately
qualified and accepted by the court and consist of accepted scientific
information and satisfy the requirement of relevance.
- The attempt to limit
expert witnesses to presentations of fact alone and the ultimate issue rule
goes some way to demonstrate
law's tenacious grip on what it considers its own
property. The danger to which Lord Justice Lawton refers in the quote from
Turner indicates law's fear that expert witnesses may be seen to wield too
much power and influence within law's own domain.
Reminders to juries in
summations that they need not accept any of the expert's findings further
reinforces the idea that law
has the last say on whether the evidence is
believed or not. It remains the case that the "nation's justice system
determines
factual issues that cannot be settled in any other forum."[53]
- In addition to rules of evidence designed to limit the
intrusion of other forms of information into its territory, law also employs
its own rules for the interpretation of information in an effort to cast
itself as the true oracle of the truth. These rules
give law the appearance of
rationality, logic, neutrality and objectivity, thus enhancing law's claims as
sole arbiter of "the
truth". Law's claim to objectivity is readily seen in the
interpretive rules that guide a judge through the legal use of language
and
information in court: the search for "the truth". The process by which the
legal interpreter searches for the truth is
carefully constructed to appear
logical, rational and value free. Moreover, it is seen to make sense in its
entirety: [54] rational rules or principles are applied to a given
situation to lead to or indeed even compel a particular result, adding to
the
body of precedent that compels similar results in similar situations. The
rules of interpretation provide an objective
standard to which the interpreter
must adhere, and provide disciplining rules which "specify the relevance and
weight to be
assigned to the material...as well as [provide rules] that define basic concepts and that establish the
procedural circumstances
under which interpretation must occur."[55]
- These hidden structural principles are "axioms of the
logical structure of the legal system. Their acceptance is "necessary...for
the (optimum) coherence of a
legal system."[56] These rules, then, operate on much the same principles as
the rules of grammar, which lead an interpreter along various formal,
well-defined and well-known paths to reach the "correct" answer - the
objective truth. These interpretive rules are given authority
and legitimacy
through an interpretive commonality which "recognizes and adheres to the
disciplining rules used by the interpreter
and that is defined by its
recognition of those rules."[57]
- Thus, while recognising that determining the meaning of a
given rule allows for some subjective personal elements, a judge's creativity
is constrained within the framework of interpretation. Authority and
legitimacy are further enhanced by an appellate process
which focuses on the
application or misapplication of the rules themselves rather than on the
interpreter, maintaining the
integrity of the interpretive process itself.
Thus, the quest for truth, in law, becomes a standardised search using
formalised
rules in a formalised way which lead to a particular answer - the
legal truth. Law maintains its claim as sole adjudicator of
the truth by
controlling both entry onto the field of play and the rules by which the game
is played. As well, once admission
into law's domain is gained, law
manipulates information for its own purposes, again to establish, assert and
maintain its
sovereignty.
- Law's use of social science evidence, for example,
demonstrates that simply because information is recognised in one field does
not give it automatic entrée into or acceptance by law. For instance, in
determining whether two gay men could form a family,
the Federal Court of
Appeal in Canada stated that while "sociologically speaking" the men might
constitute "a sort of family",
legally speaking they were not.[58]
- Here, it is clear that law trumps social science. Law
retains superiority over the "truth" of the statement that gay men can be
"family". Expert evidence itself is manipulated in court to sometimes
astonishing degrees, to the extent that it bears little
resemblance to the
evidence as initially admitted. The video evidence in the first so-called
Rodney King trial[59] in 1992 in the United States provides an excellent example
of how expert evidence can be turned around upon itself in a battle
of
interpretive authority.
- A witness videotaped four Los Angeles police officers
apparently beating Mr King after an automobile incident. These officers were
charged with excessive use of force. The videotape became the central piece of
evidence used in the trial by both the prosecution
and defence, each of whom
called "use of force" expert witnesses in an attempt to put the video evidence
into "proper" context
for the jury. At first glance, the videotape seemed to
speak for itself and demonstrated the officers' guilt beyond a reasonable
doubt. To buttress this, the prosecution produced as an expert witness in the
use of force the very man who wrote the training
manual outlining the
appropriate use of force. This expert stated that the force used in the video
was excessive and beyond
the bounds of that set out in the training manual.
However, a defence expert witness was brought in to deconstruct the videotape
and show the judge and jury what he, as an expert, could "see" that the judge
and jury could not. Played at normal speed by
the prosecution, the tape
depicted what appeared to be the savage beating of one unarmed man by four
officers armed with police
batons. In the hands of the defence expert witness,
the evidence changed dramatically. Slowed to single frame-by-frame viewing,
the expert manipulated the evidence to demonstrate that the officers were not
using excessive force but were instead "engaging
in a rational form of
professional practice with discernible periods of measured action, assessment
and response."[60]
- The defence depicts Rodney King as a dangerous black man,
high on PCP, who is a threat to the officers. There is little doubt that
the
defense constructs this specific narrative by drawing upon inflammatory
stereotypes and racist cultural ideologies. The
defense masks these
invocations of standard views on race by depicting the officers as simply
responding to the obviously 'aggressive'
moves of Rodney King with carefully
reasoned and institutionally prescribed means. In this way, the beating is
professionalized
and moved into the realm of science, thus allowing the use of
experts who can comment upon the defendants' behavior...Mr King
thus becomes the one in
control of the encounter because the officers were only responding to his
actions with the methods
appropriate to their training and profession.[61] Here, the very evidence that appeared so damning initially
is manipulated to become the defence's best evidence of innocence.
[62] This was further enhanced by a defence witness able to
provide a "streetwise" interpretation of events directly at odds with the
prosecution's use of force expert, who was depicted as having theoretical and
academic rather than (the more relevant and useful)
practical knowledge.
- Here a particular interpretive authority is employed to manipulate the same facts
into two utterly different stories, shifting
the emphasis from seemingly
objective facts to the production of facts. But this production of fact is
only possible once the
facts have been introduced and formulated within the
framework of accepted legal practice. That is, these facts cannot stand on
their own, and law not only accepts the facts on its own terms and ensures
that the facts conform to law's rules, law keeps
the final say over what they
mean. The facts must first gain admittance to the legal playing field by way
of relevance and
then are subject to law's own rules of interpretation,
filtered through the lens of an acceptable expert and ultimately pronounced
upon - as "truth" or not - by the court as finder of fact, whose job it is to
determine veracity.
- Thus, law retains ultimate dominion over what constitutes
"the truth". Law not only maintains authority over its own territory,
it only
grudgingly concedes expansion of its domain. New and "radical" ideas - such as
"gay families" and a "battered woman
syndrome" - are permitted only within
limited terms within limited contexts within limited rules designed to
constrain new
growth and at the same time ensure law's hegemony. In this way,
attempts to change the law end up simply reinforcing it instead.
- For example,
in conceding spousal benefits to same-sex partners, the British Columbia
Supreme Court ensured the continuing dominance
of heterosexist familial
ideology by requiring same-sex couples to cast themselves as closely as
possible to the traditional
heterosexual family model in order to obtain
medical benefits. This places equality-seeking same-sex couples in an
impossible
catch-22 situation of either conforming to a heterosexual spousal
model and thus reinforcing the heterosexual framework, or deliberately
choosing not to cast themselves in the traditional heterosexual spousal
framework, thus not reinforcing that model but possibly
imperilling a spousal
benefit claim. [63]
- "Battered
woman syndrome" presents cogent evidence of law's control, manipulation and
narcissism.[64] As both evidence and ideology, "battered woman syndrome"
represents many of law's hegemonic and narcissistic tendencies: medicalised
to
admit it, syndromised to accept it, legalised to explain it. All in order to
authorise it.
- Law makes a number of demands of evidence before it may be granted an
audience. In order to gain admittance to law's empire, evidence
of battered
woman syndrome must first be transformed into a context that law recognises.
In this instance, the evidence becomes
expert evidence, comprising something
the finder of fact would be unable to understand unaided. Here, "common sense"
assumptions
("Why didn't she leave?") and myths ("It couldn't have been as bad
as she said it was," or, "She liked it.") are countered with
expert,
psychiatric, scientific evidence of the realities of battered woman syndrome.
Additionally, this expert evidence must
consist of well established,
scientifically-accepted procedures or fields of expertise, possessed of both
relevance and reliability.
Thus medicalised and syndromised, the evidence is
proffered to law, but only then within the strict confines of
legally-acceptable
material.
- Law demands that evidence satisfy its own, legally-articulated
requirements of necessity, admissibility, weight, credibility and
reliability,
and further filters evidence through the ultimate issue rule and rules of
interpretation. Only when it is satisfied
that the evidence has met law's own
requirements and rules will law then pronounce upon the evidence as finder of
fact, ultimately
authorising it as "truth" where it sees fit. In so doing, law
retains its authority over science, or indeed any other field of
inquiry, as
the ultimate diviner of the truth. Thus, to return to the comments of Saunders
J in 1554, while law does approve
of and encourage outside assistance, it does
so only on law's own terms and reserves for itself the power to decide what
that
outside assistance ultimately means: to ask of experts, derisively, "What
do they know?"
[1] The question of who is an expert is a matter for the trial
judge to decide. The proposed witness must have specialised skill or
knowledge
through study, training or experience such as to render him or her an expert
in a particular area or field of study
(though this knowledge need not have
been acquired professionally: R v Silverlock [1894] 2 QB 766, in which a
solicitor who had studied handwriting for ten years, mostly as an amateur, was
treated as an expert). As well,
the proposed field of expertise must be
sufficiently well-established to pass the ordinary tests of relevance and
reliability.
If these are met, then the expert evidence can be admitted and
its assessment is left to the finder of fact as a question of weight.
See, for
instance, Bingham LJ's comments in R v Robb (1991) 93 Cr. App. 161 at 164-165:
The old-established, academically-based sciences
such as medicine, geology or metallurgy, and the established professions such
as architecture, quantity surveying or engineering, present no problem. The
field will be regarded as one in which expertise
may exist and any properly
qualified member will be accepted without question as an expert. Expert
evidence is not, however,
limited to these core areas. Expert evidence of
fingerprints, handwriting and accident reconstruction is regularly given.
Opinions
may be given of the market value of land, ships, pictures or rights.
Expert opinions may be given of the quality of commodities,
or on the
literary, artistic, scientific or other merit of works alleged to be obscene...Some
of these fields are far
removed
from anything which could be called a formal scientific discipline.
Yet while receiving this evidence the courts would not accept
the evidence of
an astrologer, a soothsayer, a witch-doctor or an amateur psychologist...[T]he
essential questions are whether
study and experience will give a witness's
opinion an authority which the opinion of one not so qualified will lack, and
(if
so) whether the witness is [skilled and has the requisite knowledge]...If
these conditions are met the evidence of the witness
is in law admissible,
although the weight to be attached to his opinion must of course be assessed
by the tribunal of fact.
[2] J Acker has defined "social science research evidence" as
information derived from the traditional methods of science - through
systematic observation and objective measurement, allowing for replication and
empirical verification - and within the subject
purview of the social
sciences, the study of behavioural events relevant to individuals and social
relations, including psychology,
sociology, psychiatry, economics, political
science and criminal justice, but not history. J Acker "Thirty Years of Social Science
in Supreme Court Criminal Cases" (1990) 12 Law & Policy 1 at 4.
[3] Buckley v Rice-Thomas (1554) 1 Plowd 118 at 124.
[4] Per Lawton LJ in R v Turner [1975] QB 834 at 841, cited with approval by Lord Wilberforce in DPP v
Jordan [1977] ADC 699 at 718. See also, generally, I Dennis The Law of
Evidence (London: Sweet & Maxwell, 1999) at pp 654 - 673, A Keane The Modern Law of Evidence (4th edition)
(London: Butterworths,
1996) pp 453 - 475 and C Tapper Cross and Tapper on
Evidence (8th edition) (London: Butterworths, 1995) pp 543 - 562. For a
discussion of this particular aspect of the use and limits of expert evidence
in an Australian context, see, for example, Farrell
v The Queen [1998] HCA 50
at paragraphs 29 and 91 - 95.
[5] The term "battered woman syndrome" is used to describe a
pattern of physical and psychological abuse inflicted upon a woman by
her
husband or partner. A battered woman is defined as [a] woman who is repeatedly
subjected to any forceful physical or psychological
behavior by a man in order
to coerce her to do something he wants her to do without any concern for her
rights. Battered women
include wives or women in any form of intimate
relationships with men. Furthermore, in order to be classified as a battered
woman, the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with
a man once. If it
occurs a second time, and she remains in the situation, she is defined as a
battered woman. L Walker The
Battered Woman (New York: Harper and Row, 1979)
at xv. Battered woman syndrome has been critiqued as syndromising and
psychologising
women and for its emphasis on 'learned helplessness', which is
the idea that abused women develop a deficiency in perceiving exit
when it is
actually available. As Katherine O'Donovan has observed, "the idea of 'learned
helplessness'...does not fully explain
how the accused comes to act, with
fatal results for the abuser": K O'Donovan "Law's Knowledge: The Judge, The
Expert, The
Battered Woman and Her Syndrome" (1993) 20 Journal of Law and
Society 427 at 431. A further critique of the "syndrome" and "victim label" is
that it implies that it is the women's reaction to the violence
visited upon
them and not the violence itself that is the problem, and that it does not
reflect the complexity of the women's
own experience nor their own resilience
in the face of that violence: M Mahoney "Legal Images" (1991) 90 Michigan Law
Review 1 at 15. See also E Sheehy, J Stubbs and J Tolmie "Defending Battered
Women on Trial: The Battered Women Syndrome and its Limitations"
(1992) 16
Criminal Law Journal 369 and C Wells "Battered Woman syndrome and defences to
homicide: where now?" (1994) 14 Legal Studies 266.
[6] The term "domestic violence" as it is used here refers to
physical violence and emotional, psychological and sexual abuse of women
in
the home by their (usually male) partners. The physical abuse ranges across
slaps, pushes and punches to stabbing and shooting.
This term also
accommodates abuse of women by their partners outside the home - violence,
shouting and threatening in a public
place, for instance. This term thus
encompasses abuse wherever it is experienced. Domestic violence is not
restricted to heterosexual
partners and can be experienced by gay male or
lesbian partners, and can be violence against men by female partners. However,
the preponderance of victims of domestic violence are women: C Hemmens, K
Strom & E Schlegel "Gender Bias in the Courts:
A Review of the Literature"
(1998) 35 (1) Sociological Imagination 22 at 24, where they state:
Ninety-eight percent of domestic
violence victims are women. Nationwide, 28%
of female homicide victims are killed by former husbands or boyfriends,
whereas
only 5% of male homicide victims are killed by former wives of
girlfriends. Domestic violence is the number one cause of physical
injury to
women in the United States (citations omitted). See also M Tuck Domestic
Violence: Report of a National Inter-agency
Working Party (London: Victim
Support, 1994), L Smith Domestic Violence: An Overview of the Literature
(London: Home Office
Research and Planning Unit, 1989). Domestic violence is
also about the gendered nature of power: who has it, who exercises it,
and
upon whom is it exercised. Traditionally, the official criminal justice
agencies of law enforcement and courts were reluctant
to intervene in what was
considered a couple's - and more particularly the man's - private life, thus
maintaining a strict
separation of the public and private spheres of a
person's life. For accounts of the history of domestic violence, see,
generally,
M Fineman & R Mykitiuk (eds.) The Public Nature of Private
Violence: The Discovery of Domestic Abuse (New York: Routledge,
1994), R
Dobash and R Dobash Violence Against Wives: A Case Against the Patriarchy (New
York: Free Press, 1979) and W DeKeseredy
& R Hinch Woman Abuse:
Sociological Perspectives (Toronto: Thompson Educational Publishing Inc,
1991).
[7] See, for example, K Rodgers "Wife Assault: The Findings of a
National Survey" (1994) 14 (9: March) Juristat Service Bulletin,
Ottawa,
Canadian Centre for Justice Statistics, M Fineman & R Mykitiuk (eds.)
above note 6, I Arias, D Dwyer "Response
to the Victims of Domestic Violence:
Analysis and Implications of the British Experience" (1995) October Crime and
Delinquency
527, R Davis & B Smith "Domestic Violence Reforms: Empty
Promises or Fulfilled Expectations?" (1995) 41 (4) Crime & Delinquency
541, M Samios & K O'Leary "Prevalence and correlates of physical
aggression during courtship" (1987) 2 Journal of Interpersonal
Violence 82, L
Stalans & A Lurigio "Public Preferences for the Court's Handling of
Domestic Violence Situations" (1995) 41 (4) Crime & Delinquency 399 and J
Hanmer, S Griffiths & D Jerwood "Arresting Evidence: Domestic Violence and
Repeat Victimisation" (London: Home Office
Research, Development and
Statistics Directorate, 1999).
[8] M Donnelly "Battered Women who kill and the Criminal Law
Defences" (1993) 3 (2) Irish Criminal Law Journal 161, K O'Donovan "Defences
for Battered Women Who Kill" (1991) 18 Journal of Law and Society 219, D Nicolson & R Sanghvi
"Battered Women and Provocation: The Implications of R v Ahluwalia" [1993]
Criminal Law Review 728, W Chan "A Feminist Critique of Self-Defense and
Provocation in Battered Women's Cases in England and Wales" (1994) 6 (1) Women
& Criminal Justice 39 and C Wells "Battered Woman syndrome and defences to
homicide: where now?" above note 5.
[9] For example, see J McKendry "The Class Politics of Domestic
Violence" (1997) 24 (3) Journal of Sociology and Social Welfare 135,
J Stubbs
& J Tolmie "Race, Gender and the Battered Woman Syndrome" (1995) 8
Canadian Journal of Women and the Law 122, E Lupri, E Grandin & M
Brinkerhoff " Socioeconomic status and male violence in the Canadian home: a
reexamination" (1994)
19 Canadian Journal of Sociology 47, J Krane "Violence Against
Women in Intimate Relations: Insights from Cross Cultural Analyses"
(1996) 33
Transcultural Psychiatric Research Review 435, J Cribb & R Barnett "Being
Bashed: Western Samoan Women's Response
to Domestic Violence in Western Samoa
and New Zealand" (1999) 6 (1) Gender, Place and Culture 49 and D Counts, J Brown & J
Campbell (eds.) Sanctions and
Sanctuary: cultural perspectives on the beating of wives (Boulder: Westview
Press, 1992).
[10] See, for instance, E Sheehy, J Stubbs & J Tolmie above
note 5, C Wells "Battered Woman syndrome and defences to homicide:
where now?"
above note 5, P Easteal "Battered Woman Syndrome Misunderstood" (1992) 3
Issues in Criminal Justice 356, D Faigman
"The Battered Woman Syndrome and
Self-Defence: A Legal and Empirical Dissent" (1986) 72 Virginia Law Review
619, D Martinson, M MacCrimmon, I Grant & C Boyle "A Forum on Lavallee v
R: Women and Self-Defence" (1991) 25 UBC Law Review 23, I Leader-Elliot
"Battered but not Beaten: Women who Kill in Self-Defence" [1993] SydLawRw 38; (1993) 15 Sydney Law
Review 403, D Nicolson & R Sanghvi "Battered Women and Provocation: The
Implications of R v Ahluwalia" above note 8, M Griffith "Battered
Woman
Syndrome: A Tool for Batterers?" (1995) 64 Fordham Law Review 141 and A
Blowers and B Bjerregaard "The Admissibility of Expert Testimony on the
Battered Woman Syndrome in Homicide Cases" (1994) 22 Journal of Psychiatry
& Law 527.
[11] Homicide Act 1957, s. 3: Where on a charge of murder there
is evidence on which the jury can find that the person charged was
provoked
(whether by things done or things said or by both together ) to lose his [sic]
self-control, the question whether
the provocation was enough to make a
reasonable man [sic] do as he did shall be left to be determined by the jury;
and in determining
that question the jury shall take into account everything
done and said according to the effect which, in their opinion, it would
have
on a reasonable man.
[12] Homicide Act 1957, s. 2: Where a person kills or is party to
the killing of another, he [sic] shall not be convicted of murder
if he was
suffering from such abnormality of mind (whether arising from a condition of
arrested or retarded development of
mind or any inherent causes or induced by
disease or injury) as substantially impaired his mental responsibility for his
acts
and omissions in doing or being a party to the killing.
[13] Self-defence is a common law justification, rather than a
defence in strict terms, that has the effect of negativing an element
of the
offence so as to render it lawful. It overlaps with s. 3 of the Criminal Law
Act 1967, which provides: (1) A person
may use such force as is reasonable in
the circumstances in the prevention of crime, or in effecting or assisting in
the lawful
arrest of offenders or suspected offenders or of persons unlawfully
at large. (2) Subsection (1) above shall replace the rules
of common law on
the question when force used for a purpose mentioned in the subsection is
justified by that purpose. For arguments
that self-defence more adequately
reflects the facts and circumstances under which battered women kill their
abusive partners,
see A McColgan "In Defence of Battered Women who Kill"
(1993)
[13] Oxford Journal of Legal Studies 508 and C Wells "Battered
Woman syndrome and defences to homicide: where now?" above note 5.
[14] A classic self-defence scenario involves two men in a bar
room brawl, a situation in which the danger is imminent, the attack
is
underway and the two combatants do not have a history of violence with each
other. This scenario is laden with generalisations
that may be entirely
inappropriate to women in battering situations: He stands and faces his
adversary, meeting fists with
fists. He isn't frightened or provoked to
violence by mere threats; he doesn't use a weapon unless one is being used
against
him; and he doesn't indulge himself in cowardly behaviour such as
lying in ambush or sneaking up on an enemy unawares. C Gillespie
Justifiable
Homicide: Battered Women, Self-Defense and the Law (Columbus: Ohio State
University Press, 1989) at 99.
[15] R. v Duffy [1949] 1 All ER 932 at 932.
[16] Ibid.
[17] Ibid.
[18] R v Thornton [1992] 1 All ER 306.
[19] Ibid. at 314.
[20] Ibid. at 313 - 314.
[21] R v Ahluwalia [1992] EWCA Crim 1; [1992] 4 All ER 889.
[22] Taylor LJ stated that
We accept that the subjective element
in the defence of provocation would not as a matter of law be negatived simply
because
of the delayed reaction in such cases, provided that there was at the
time of the killing 'a sudden and temporary loss of self-control'
caused by
the alleged provocation. However, the longer the delay and the stronger the
evidence of deliberation on the part
of the defendant, the more likely it will
be that the prosecution will negative provocation. Ibid. at 896.
[23] R v Dix (1981) 74 Cr App R 306.
[24] Gillespie above note 14 and K O'Donovan "Law's Knowledge:
The Judge, The Expert, The Battered Woman and Her Syndrome" above note
5 at
428 - 429. The inability of the reasonable man paradigm to accommodate
battered women is nicely set out in Madam Justice
Wilson's reasons for
judgment in R v Lavallee [1990] 1 SCR 852. This landmark Canadian case
admitted expert evidence of battered woman syndrome to support a plea of
self-defence to murder
where a woman had killed her abusive partner. Wilson J
wrote: If it strains credulity to imagine what the 'ordinary man' would
do in
the position of a battered spouse, it is probably because men do not typically
find themselves in that situation. Some
women do, however. The definition of
what is reasonable must be adapted to circumstances which are, by and large,
foreign to
the world inhabited by the hypothetical 'reasonable man'. R v
Lavallee ibid. at 874. For additional analysis of Justice Wilson's
commentary
on this point, see M MacCrimmon "A Forum on Lavallee v R: Women and
Self-Defence" above note 10 at 42.
[25] State v Kelly 478 A 2d 364 (1984) at 378. On the
problematising of the "common" in "common sense", see M MacCrimmon
"Developments in the Law of Evidence"
(1990) 2 Supreme Court Law Review (2d)
385 at 386, where she says that the law of evidence assumes that
"understanding human
behaviour is merely a matter of common sense." Common
based upon whose reality and knowledge? See also A Worral, who suggests
that
"common" sense is "'common' because it is presumed to be simple, consensual
and universally applicable" and "'sense' because
its truth can supposedly be
grasped or 'sensed' without being articulated or rationally justified":
Offending Women: Female
Lawbreakers in the Criminal Justice System (London:
Routledge, 1990) at 18.
[26] This point is raised in several of the analyses of the
"battered woman syndrome" defence cited in notes 5 and 10 above. See also
I
Grant "The 'Syndromization' of Women's Experience" in "A Forum on Lavallee v
R: Women and Self-Defence" above note 10 at
51.
[27] I Newton Philosophiĉ Naturalis Principia Mathematica
(Londini: Jussu Societatis Regiĉ ac Typis Josephi Streater, 1687).
[28] For a fuller analysis of this "flight to objectivity", see S
Bardo The Flight to Objectivity: Essays on Cartesiansim and Culture
(Albany:
State University of New York Press, 1987).
[29] T Ward "Law, Common Sense and the Authority of Science:
Expert Witnesses and Criminal Insanity in England, ca. 1840 - 1940" (1997) 6
(3) Social and Legal Studies 343 at 345.
[30] Ibid. at 348. See also M Valverde "Social Facticity and the
Law: A Social Expert's Eyewitness Account of Law" (1996) 5 (2) Social and
Legal Studies 201 at 204 - 205.
[31] "Scientific methodology today is based on generating
hypotheses and testing them to see if they can be falsified": M Green "Expert
Witnesses and sufficiency of evidence in toxic substances litigation: The
legacy of Agent Orange and Bendectin litigation"
(1992) 86 NW U L Rev 643 At
645. See also C Hempel Philosophy of Natural Science (Englewood Cliffs:
Prentice-Hall, 1966) at 49: "statements constituting
a scientific explanation
must be capable of empirical test" and K Popper Conjectures and Refutations:
The Growth of Scientific
Knowledge (5th ed.) (London: Routledge, 1989) at 37:
"the criterion of the scientific status of a theory is its falsibility, or
refutability, or testability".
[32] The fragmented aspect of the sciences is readily seen in the
range and variety of expert witnesses on offer to practising lawyers.
As a
member of the British Columbia bar, I frequently receive mass mailings
advertising the services of experts in a bewildering
array of scientific
fields. See also C Pamplin (ed.) UK Register of Expert Witnesses (5th ed.)
(Chorley: JS Publications, 1992)
, which covers over 800 different subjects.
See also S Golding "Mental Health Professionals and the Courts: The Ethics of
Expertise"
(1990) 13 International Journal of Law and Psychiatry 281 at 281,
where he states that "[w]hile the forensic mental health profession is a
specialty, it is a mistake not to acknowledge
the diversity of particular
roles and to recognize that expertise within the specialty does not translate
to expertise across
the domain of roles."
[33] S Janoff "What judges should know about the sociology of
science" (1993) 77 Judicature 77 at 80.
[34] Ibid. at 77 - 78. See also B Latour & S Woolgar
Laboratory Life: The Construction of Scientific Facts (2nd ed.) Princeton:
Princeton University Press, 1986).
[35] D Kaye "Bible Reading: DNA Evidence in Arizona (1997) 28 (4)
Arizona State Law Journal 1035 at 1035.
[36] The basis for DNA testing is the well-accepted proposition
that, except for identical twins, each person has a unique overall
genetic
code. Because of limitations in the available technology, testing can only be
performed on very limited segments of
the entire DNA sequence. Since 99.9% of
the DNA sequence in any two people is identical, accurate analysis is vital to
determine
whether there is a match of the remaining 0.1% of the DNA sequence
of the sample compared.
[37] For a general review of some of the difficulties in
interpreting data generated from DNA testing, see D Kaye "DNA Evidence:
Probability, Population Genetics, and the Courts" (1993) 7 Harvard Journal of
Law and Technology 101, A Jeffreys et al "Individual-Specific 'Fingerprints'
of Human DNA" (1985) 316 Nature 76, B Devlin & N Risch "Ethnic
Differentiation
at VNTR Loci, with Specific Reference to Forensic
Applications" (1992) 51 Am. J Human Genetics 534, and N Risch & B Devlin
"On the Probability of Matching DNA Fingerprints" (1992) 255 Science 717.
[38] For the test for appropriate expertise, see note 1 above.
[39] A working definition of relevance is provided in DPP v
Kilbourne [1973] AC 729 at 756: "Evidence is relevant if it is logically
probative or disprobative of some matter which requires proof...evidence which
makes the matter
which requires proof more or less probable."
[40] See, for example, Sherrard v Jacob [1965] NI 151 at 157 -
158 CA.
[41] For example, a witness may testify that she saw a defendant
with some property [the fact of possession], but may not testify that
she
thought the defendant was dishonest [the inference of theft].
[42] M Valverde "Social Facticity and the Law" above note 30 at
213.
[43] S Gothard "Rules of Testimony and Evidence for Social
Workers Who Appear as Expert Witnesses in Courts of Law" (1989) 3 (3) Journal
of Independent Social Work 7 at 9.
[44] Anxiety over appearance is not limited to witnesses. At the
law firm at which I worked we regularly counselled our clients about
"appropriate" attire for their appearance in court (usually as defendants),
and as an articled student who made court appearances
almost every day I knew
better than to show up to court looking scruffy. There were some wonderful
stories - possibly apocryphal
- about the court exercising its power over
articled students and junior lawyers by refusing to hear them on the basis
that
they were not "properly attired". One story involved a notoriously
difficult judge who declined to hear a lawyer's application
in chambers
because the lawyer was wearing brown shoes rather than (the apparently)
regulation black.
[45] This rule has been abolished in civil cases. Its abandonment
was recommended by the Law Reform Committee's 17th Report and implemented
by
Section 3 (1) of the Civil Evidence Act 1972. This states that subject to any
rules of court made in pursuance of this Act, where a person is called as a
witness in any
civil proceedings, his opinion on any relevant matter on which
he is qualified to give expert evidence on shall be admissible
in evidence.
Section 3 (3) reads: "In this section 'relevant matter' includes an issue in
the proceedings in question."
[46] How much longer criminal cases are to be under this embargo
remains to be seen. The Criminal Law Revision Committee has recommended
its
abandonment (CI 43 of the draft bill annexed to its 11th report [Cmnd 4491]),
but this has yet to be implemented. The ultimate
issue rule has been
officially abolished elsewhere. See, for example, Australia: section 80 of the
Evidence Acts 1995 (NSW,
Cth) states that Evidence of an opinion is not
inadmissible only because it is about: (a) a fact in issue or an ultimate
issue;
or (b) a matter of common knowledge.
[47] A Keane The Modern Law of Evidence (4th ed.) above note 4 at
464.
[48] See, for instance, the Law Reform Committee 'Evidence of
Opinion and Expert Evidence', Cmnd 4889, paras 266 - 271 cited in Cross
&
Tapper on Evidence above note 4 at 553 and R Jackson "The Ultimate Issue Rule:
One Rule Too Many" [1984] Criminal Law Review 75.
[49] Expert witnesses theoretically have unique roles and
responsibilities that they bring with them to the court. According to Creswell
J,
1. Expert evidence presented to the court should be, and should be seen to
be, the independent product of the expert uninfluenced
as to form or content
by the exigencies of the litigation... 2. An expert witness should provide
independent assistance to
the Court by way of objective unbiased opinion in
relation to matters within his expertise... An expert witness in the High
Court should never assume the role of an advocate. 3. An expert witness should
state the facts or assumption upon which his opinion
is based. He should not
omit to consider material facts which could detract from his...concluded opinion... 4. An expert
witness
should make it clear when a particular question or issue falls outside
his expertise... 6. If, after exchange of reports, an expert
witness changes
his view on a material matter having read the other side's expert's report or
for any other reason, such change
of view should be communicated (through
legal representatives) to the other side without delay and when appropriate to
the
Court. National Justice Cia Naviera SA v Prudential Assurance Co Ltd, The
Ikarian Reefer [1993] 2 LI Rep 58 at 81 - 82.
Thus the expert witness owes a
duty as an officer of the court to assist the court quite above any duty owed
to the client who
is undoubtedly paying for the expert to appear on his or her
behalf. While in theory this may be true, the reality of litigation
suggests
otherwise. Because of the adversarial nature of litigation, each side wages a
battle for their version of "the truth",
the idea being that "the truth" will
emerge when each side has had an opportunity to present their evidence and
test the validity
of that of the other side. Each side of any litigation issue
selects their own witnesses, and are hardly likely to select experts
who will
not support their version of the evidence. See also S Golding "Mental Health
Professionals and the Courts: The Ethics
of Expertise" above note 32 for a
discussion of the ethical principles which should govern the offering of
mental health professionals'
expertise in the American criminal justice
system.
[50] In the Law Reform Committee's 17th Report above note 45, the
Criminal Law Revision Committee was of the view that the rule 'probably
no
longer existed': para 268. See also Lord Taylor CJ in R v Stockwell (1993) 97
Cr App Rep 260 at 265: the rule has become "a matter of form rather than
substance."
[51] DPP v A & B C Chewing Gum Ltd. [1968] 1 QB 159 at 164,
DC.
[52] R v Turner [1975] QB 834 at 841.
[53] R Underwager & H Wakefield "A Paradigm Shift for Expert
Witnesses" (1993) 5 (3) Issues in Child Abuse Accusations 156 at 156.
[54] See also R Sarkowicz "Levels of Interpretation of a Legal
Text" (1995) 8 (1) Ratio Juris 104, especially at 108 - 110.
[55] O Fiss "Objectivity and Interpretation" (1982) 34 Stanford
Law Review 739 at 744.
[56] M Van Hoecke "The Use of Unwritten Legal Principles by
Courts" (1995) 8 (3) Ratio Juris 248 at 251. See also R Sarkowicz "Levels of
Interpretation of a Legal Text" above note 54.
[57] O Fiss "Objectivity and Interpretation" above note 55 at
745.
[58] Canada (Attorney General ) v Mossop [1991] 1 FC 18 at 35.
[59] This is a misnomer. This cases is often referred to as the
Rodney King trial despite the fact that the defendants (Timothy Wind,
Theodore
Bresenio, Laurence Powell and Stacey Koon) were four Los Angeles police
officers charged with the use of excessive
force against motorist Rodney King.
[60] C Renoe "Seeing is Believing?: Expert Testimony and the
Construction of Interpretive Authority in an American Trial" [1996] IX
(no.
26) International Journal for the Semiotics of Law 115 at 122.
[61] Ibid. at 122 - 123.
[62] The jury, as finder of fact, preferred this interpretation
of the facts: the officers were acquitted of the charge of using excessive
force against Rodney King. In a subsequent trial, two of the four officers
were convicted of violating Mr King's civil rights.
[63] N K Sam Banks "Knodel v British Columbia [Medical Services
Commission]" (1993) 11 Canadian Journal of Family Law 287 at 297. For another
view of this point, see D Herman "Are We Family? Lesbian Rights and Women's
Liberation" (1989) 28 Osgoode Hall Law Journal 789.
[64] Valverde refers to "law's narcissistic deliberations" and
"Law as Narcissus" above note 30 at 204 and 207, respectively.
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