NCJ Number
188770
Journal
Judicial Review Volume: 4 Issue: 4 Dated: 2000 Pages: 429-462
Date Published
2000
Length
34 pages
Annotation
The topic of expert witness bias in Australia is discussed along with possible solutions for prevention.
Abstract
A survey of 244 judges in Australia found that one in four said they encountered bias on the part of expert witnesses often, and about two in five said that partisanship was a significant problem for the quality of fact-finding. A recent development has been the promulgation of codes of conduct for expert witnesses. These include a duty to express only opinions genuinely held and which are not biases; a duty not to mislead by omission; and a duty to consider all the material facts and not to omit material facts which could detract from the concluded opinion. Another way the problem of expert witness bias can be reduced is for the court to appoint an expert to inquire and report on expert witnesses. However, this can be seen as contrary to the fundamental premise of the adversarial system. The appointment of a court assessor (adviser) to assist the judge in understanding technical evidence is a rarely used alternative. A concern about the use of assessors is that the assessor may usurp the role of the judge without the parties having an opportunity to challenge the assessor’s views through cross-examination. The court may direct experts to confer with a view to finding common ground and narrowing the technical issues but a problem with that could be procedural fairness. The parties should be required, before the experts meet, to identify the issues in the case on which either or both the parties wish to bring forward expert evidence. The optimum time for a conference between expert witnesses will depend on the case. The most potentially effective way to deal with expert witness bias is to refer technical questions to a referee to inquire into and report back on any matter. This report may be accepted, varied, or rejected by the court. 67 footnotes, appendices.