Expert witnesses and their role in the legal process

What is an expert witness? An expert witness is someone who is qualified and permitted to testify at trial because of his/her knowledge in a particular field in which could be relevant to an ongoing case where the judge and/or jury has a difficult time in making their final decision and may use the expert witness as an assistance (What is an Expert Witness, 2009). Expert witnesses do not provide facts, they provide opinions. According to the Canada Evidence Act under Section 7 “where in any trial or any other proceeding, it is intended by the prosecution or defense, to examine a witness professional or expert according to the law or practice to give opinion on evidence, not more than five witness may be called on either side without the leave of the court of judge or person presiding” (Legislative Services Branch. 2020). Expert witnesses are a tool that assist with the appreciation of the significance of evidence, as well as drawing inferences from such evidence. Expert witnesses are oftentimes essential and are very commonly called upon.

Although an expert witness can be very beneficial, in complicated cases where there is difficulty proving innocence or guilt an expert witness can be a deal breaker for the case. Sometimes although their expertise may be helpful in decision making they don’t always make their statements with full knowledge of the case, rather their statements are based on questions regarding their expertise and that only, rather than the topic in company with the case and the case facts. At times, some details of the case may remain hidden from the expert witnesses, although this aims to make their answers impartial it can also lead to the experts being in the dark about details that may change their answer.

To go into depth when we look specifically into Eye Witnesses, experts have said the primary duty of an eye witness in front of a jury is to educate them on the event. The majority of the time when a witness is called upon in a jury as a eye witness it has brought a positive outcome to the jury. Expert testimonies have been seen to be very beneficial in enhancing and assisting in allowing jurors to have a better understand of any eyewitness’ memory and assisting them in using the evidence in a sustainable manner when it allow for a informed and reasonable decision(Laub, Cindy and

Bornstein, Brian H).

A concern with Eyewitness Experts are that there memory may vary something they may have extremely good memory where as other times is might not be as useful as they need to be, there are lots of factors that play a role when it comes to eyewitnesses and some of them may be things like a bias, confidence level of the witness, exposure, emotions and stress and many more. When cases for instance are weapon focused sometimes it can become an issue because sometimes they assume they have an understanding but they really don’t, at the time of the incident the weapon could’ve have been the main focused and the odd of the witness having seen the suspect can be very low, as the concern was gravitated towards something else they may be able to have a detailed explanation of the incident and the weapon but may not have any clue about the individual(s) who actually committed the crime (Anderson, Tiffany M).

The position of an expert witness is a very privileged position, and some of the issues mentioned prior are topics of debate as to why there are problems when it comes to the court process and expert evidence. One of them being that court experts are essentially at times replacing the position of the judges, as well as the jury when it comes to the decision making process. Although the role of the judge and/or jury is to gather all relevant evidence and make an impartial decision on guilt, the expert witnesses opinion can at times become a verdict. The expert’s only job is to give their opinions on their given expertise that they are asked about and not what their decision is.

Another issue plaguing the justice system is “that expert evidence is too readily admitted due to insufficient scrutiny on the admissibility of expert opinion” (Expert Evidence, October 2011). As an expert they specialize in the a subject that allow them to offer their expertise and opinion without witnessing the incident but based off the information they are provided, so to be able to assist jurors in emphasis and assisting with eye witness the only person who could be an expert is a phycologist.

There are many misperceptions that jurors face when it comes to eye witnesses and one of them are that the believe “witnesses remember the details of violent crimes better than those of nonviolent ones” (Thomas Dillickrath) and this is not true as witness can be distracted by many other things at the time of the incidents so although their memory may be clean it may not be completely true as there memory may be of a specific thing or a something that was focused on at the time of the incident.

Another example could be emotional and mental state, the emotional and mental state of can alter the accuracy of a witness identification and memory, jurors fall under the assumption that if the witness seems to be confident they are more reliable and accurate, research shows that there is not much of a connection between confidence and reliability (Thomas Dillickrath). As an expert they try to get the jury to analyze the eyewitness in more depth, they cannot speak on the issue on trial, they don’t test of interview anyone, they don’t comment personal opinions they simply asses and provide their professional expertise and knowledge of their expertise.

A study by Schweitzer proposes that a large focus when it comes to eyewitness testimony has been the gate keeper effect, this effect is when jurors are influenced more by the experts testimony when is admissible by the judge. When the jurors are provided with the judges admission of the experts testimony the credibility of it becomes a lot more important and reliable and jurors proceed on with their decision based on what the reliable information they have been provided with. To guide whether the expert witness’ testimony should be admissible the “Mohan Criteria” was developed. The Mohan Criteria weighs the experts testimony against four criteria; relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and lastly a properly qualified expert (Schneider, 2016).

Therefore it is up to the judge and the jury to ensure that the experts testimony is not biased and work in an unbiased manner to ensure the correct information and opinions are being formulated to assist in the correct decision made by the court. Lastly, when experts are providing detail and opinion on their statements we must ensure that the experts are able to back up and provide proof and detail as to what they are saying, and be able to provide evidence to the courts on their opinion.