Introduction

• Author: Alan D. Gold
• Pages: 1-24

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Chapter 1

Introduction

    granted a special licence by the courts of law. While

most witnesses called to assist the law in its fact-nding and decision-making

enterprise are limited to recounting what they personally observed with their

own senses, expert w itnesses are allowed to opine. ey are — subject to the

rules of e vidence in that reg ard— al lowed to oer their bel iefs and conclusions

as substantive evidence. e law’s relationship with this special category of wit-

nesses has had an unsteady course.

Initially, the law was suspicious of experts and their evidence. One author

wrote in :

e testimony of skilled witnesses is perhaps that which deserves least credit

with a jury. ese usually speak to opinions and not to facts; and it is oen

really surprising to see t he facility and ex tent to which views can be made to

coincide with wishes or interests. Ski lled witnesses do not, indeed, wilful-

ly misrepresent what they think: but their judgments have oen become so

warped by regarding t he subject from only one point of view, that they are, in

truth, not capable of forming an independent opinion even when they would

conscientiously desire to do so. Being zealous partisans, their belief becomes

synonymous with the Apostle’s denition of Faith, “the substance of things

 An expert witne ss is dened as someone who posses ses “special skill or k nowledge ac-

quired through st udy or experience that entitles him or her to g ive an opinion or evidence

concerning his or her area of e xpertise”: John A. Yogis, Canadian Law Dictionary, th ed.

(Hauppauge, NY: Barron’s Educational Series, ) at .

    

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hoped for, the evidence of things not seen.” Lord Campbell once said, “Sk illed

witnesses come with such a bias on their minds to support the cause i n which

they are embarked, that hard ly any weight should be given to their evidence.”

Wigmore, the leading American authority on the law of evidence, is quot-

ed as having said: “It [the rule permitting expert opinion testimony] has done

more than any one rule of procedure to reduce our litigation to a state of legal-

ized gambling.” Another commentator stated:

In the lush pastures of the Common Law a number of sacred cows gra ze and

no-one dares to cull them or even try to make them healthier. One answers

to the name of “expert evidence.” . . . It is a scraggy ani mal, despised by many,

yet its continued existence is essential for the proper administrat ion of justice.

Properly cared for it could provide good progeny but the breeding would have

to be selective as some strains may not be worth encouragi ng.

e present Chief Justice of Canada, the Right Honourable Beverley Mc-

Lachlin, has noted the much dierent attitude towards expert evidence that has

developed i n more recent times:

By the s the law had travelled a great distance indeed from its early suspi-

cion of the dang ers of expert evidence. Experts were allowe d to testify on any

subject, regardless of whether it was withi n the understanding and experience

of the judge and ju ry. Experts were a llowed to go beyond exper t opinions and

permitted to summarize complicated or ambiguous sets of facts. e hypo -

thetical question was no longer to be insisted upon. A nd, in perhaps the most

serious incu rsion on the traditional v iew, expert witnesses were to be allowed

to testify and base t heir conclusions on what was admitted to be hearsay and

inadmissible evidence, subject only to the rather ineectual admonition that

care should be given to the “weight” the evidence should be g iven.

Newly freed from its old constraints, exper t evidence burst on the court-

house scene with a startling vigour. e age of the expert had truly arrived.

Increasingly, great portions of trials, simple and complex, were consumed by

expert testimony. Litigation became not only a contest on the facts and the

law, but a battle of experts. Each side raced to retain the best experts in the

eld before their opponent could hire them. Experts vied to put in longer and

 J.P. Taylor, A Treatise on the Law of Evidence, th ed. by W.E. Hume-William s (London:

Sweet & Maxwell , ) at , quoted by e Honourable Chief Justice B.M. McLach lin

in “e Role of the Exp ert Witness” () : Prov. Judges J. .

 uoted in Welcome D. Pierson, “Abuses in the Use of Expert Testimony” ()  De-

fense L.J.  at .

 L.J. Lawton, “ e Limitations of Exper t Scientic Evidence” ()  J. Forensic Sci. .