Introduction

• Author: Alan D. Gold
• Pages: 1-23

Chapter

1:

Introduction

EXPERT

witnesses

are

granted

a

special licence

by the

courts

of

law.1

While most witnesses called

to

assist

the law in its

fact-finding

and

decision-making enterprise

are

limited

to

recounting what they personal-

ly

observed with their

own

senses, expert witnesses

are

allowed

to

opine.

They

are —

subject

to the

rules

of

evidence

in

that regard

—

allowed

to

offer

their

beliefs

and

conclusions

as

substantive evidence.

The

law's rela-

tionship with this special category

of

witnesses

has

been

an

unsteady

course.

Initially,

the law was

suspicious

of

experts

and

their evidence.

One

author wrote

in

1906:

The

testimony

of

skilled witnesses

is

perhaps that which deserves least

credit with

a

jury.

These

usually speak

to

opinions

and not to

facts;

and it

is

often really surprising

to see the

facility

and

extent

to

which views

can be

made

to

coincide with wishes

or

interests.

Skilled

witnesses

do

not, indeed,

wilfully

misrepresent what they think:

but

their judgments have often

become

so

warped

by

regarding

the

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

definition

of

Faith,

"the substance

of

things

hoped

for,

the

evidence

of

things

not

seen."

Lord

1 An

expert witness

is

defined

as

someone

who

possesses "special

skill

or

knowledge

acquired

through study

or

experience that entitles

him or her to

give

an

opinion

or

evi-

dence

concerning

his or her

area

of

expertise":

John

A.

Yogis, Canadian

Law

Dictionary,

4th

ed.

(Toronto: Barren's Educational Series, 1998)

at

100.

[I]

ONE: INTRODUCTION

Campbell once said, "Skilled witnesses come with such

a

bias

on

their

minds

to

support

the

cause

in

which they

are

embarked, that hardly

any

weight

should

be

given

to

their evidence."2

Wigmore,

the

leading

American

authority

on the law of

evidence,

is

quoted

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

legalized

gambling."3

Another

commentator

stated:

In

the

lush pastures

of the

Common

Law a

number

of

sacred cows graze

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 animal,

despised

by

many,

yet its

continued existence

is

essential

for the

proper

administration

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 encouraging.4

The

present

Chief

Justice

of

Canada

has

noted

the

much

different

atti-

tude

towards

expert

evidence

that

has

developed

in

more

recent

times:

By

the

1980s

the law had

travelled

a

great distance indeed

from

its

early

suspicion

of the

dangers

of

expert evidence. Experts were allowed

to

testify

on any

subject, regardless

of

whether

it was

within

the

understanding

and

experience

of the

judge

and

jury.

Experts were allowed

to go

beyond expert

opinions

and

permitted

to

summarize complicated

or

ambiguous sets

of

facts.

The

hypothetical

question

was no

longer

to be

insisted

upon.

And,

in

perhaps

the

most serious incursion

on the

traditional view, expert witness-

es

were

to be

allowed

to

testify

and

base their conclusions

on

what

was

admitted

to be

hearsay

and

inadmissible evidence,

subject

only

to the

rather

ineffectual

admonition that care should

be

given

to the

"weight"

the

evidence

should

be

given.

Newly

freed

from

its old

constraints, expert evidence burst

on the

court-

house scene with

a

startling vigour.

The age of the

expert

had

truly

2

J.P. Taylor, Treatise

on the Law of

Evidence

(1906)

at 63,

quoted

by The

Honourable Chief

Justice B.M. McLachlin

in

"The Role

of the

Expert Witness" (1990) 14:3 Prov.

JJ. 27.

3

Quoted

in

Welcome

D.

Pierson, "Abuses

in the Use of

Expert Testimony" (1961)

9

Defense

L.J.

117 at

119.

4

L.J. Lawton, "The Limitations

of

Expert

Scientific

Evidence" (1981)

20 J.

Forensic Sci. 237.

[2]