Panorama and expert witnesses
Undercover investigation into expert witnesses revealed
a couple of important misunderstandings
The BBC Panorama report aired on 9 June was billed as an undercover investigation into expert witnesses. It featured a number of experts who were filmed covertly by a BBC reporter with the message that these experts were ‘guns for hire’. Doubtless it would have made uncomfortable viewing for the experts caught up in it, but for me it revealed a couple of important misunderstandings.
The first is the idea that a person who walks into an expert’s office and says ‘I’m guilty’ is, in fact, guilty. I know no lawyer who would accept that claim from a potential client without considering all the facts and, indeed, the formal charge made against the person. In the legal sense, guilt is a matter of law, and it is for the court to determine.
Second, there is a clear distinction between the role of expert advisor and that of expert witness. The former is an expert who is contracted by a lay client for the purposes of providing expert advice. In that situation the expert is working outside the court system and has no overriding duty to the court. When it comes to legal work, such an expert advisor is generally being asked to advise on what would be the strongest defence and the approaches most likely to be encountered from the opposing team. This role doesn't, of course, encompass fabrication or hiding of evidence, but it is, by definition, a partisan role.
An expert witness is instructed in accordance with court rules, and the role is very different. The expert’s overriding duty is to the court, and the expert must remain entirely non-partisan.
Leaving the behaviour of the experts filmed by the BBC to one side, the lessons I take from the programme are that experts would be wise to:
- be clear with clients that matters of guilt are for the court, not experts
- take care to differentiate clearly between the roles of expert advisor and expert witness, both in their own heads and to those around them
- recognise that moving from the role of partisan expert advisor to independent expert witness is often very difficult.
Finally, if the problems associated with working direct with litigants in person are not enough to put experts off such employment, maybe regarding lay clients as potential undercover BBC reporters will!