Every year, we find more examples of wrongful convictions. Late last year, for example, Kyle Unger joined a long list of victims of miscarriages of justice.
A Manitoba judge acquitted him after hearing that DNA evidence couldn’t link a hair found at the murder scene to him. The case also involved a false confession obtained through the use of the Mr. Big technique.
This is an odious scam where police draw suspects into lucrative criminal activity and then encourage them to confess to a murder or other serious crime to satisfy their boss of their trustworthiness.
With organizations such as the Association in Defence of the Wrongly Convicted and the innocence project doing their work along with the Goudge inquiry’s look at the wrongdoings of pathologist Dr. Charles Smith, we’ve learned a lot about the many wrongful convictions that bring discredit to our criminal justice system. Much of the discredit is due to false or overzealous expert testimony.
Thus far, we’ve focused on wrongful convictions. I’m not aware of any efforts to examine the world of civil litigation.
But let’s not kid ourselves. If there have been many miscarriages of justice in the criminal court system due to false or overzealous expert testimony, what makes anybody think there haven’t been even more injustices on the civil side?
After all, the standard of proof in the civil justice system is much lower than beyond a reasonable doubt. Logic tells me that there must be many more problems in the civil justice system as compared to the criminal courts.
Maybe we shouldn’t care about miscarriages of justice on the civil side. After all, nobody ends up in jail due to mistakes in civil cases. But such errors can ruin lives. A wrongful finding of liability can lead to bankruptcy, ruined marriages, delayed retirement, and severe psychological harm.
It can see children wrongfully removed from a parent. Conversely, the wrongful dismissal of a civil action can lead to catastrophically injured people living out their lives in relative poverty or with a substantially diminished quality of life.
There’s no magic answer to this vexing problem. We must have some finality and certainty in civil disputes. We can’t expect people to live with the threat of a lawsuit hanging over their heads indefinitely.
Barring fraud, we shouldn’t allow a civil judgment to come under attack after the conclusion of the appeal process. But we can take steps to improve the quality of our court system in order to reduce the incidence of miscarriages of justice.
Since expert witness testimony is a common factor in many wrongful criminal convictions, it seems logical that it’s also a large contributor to miscarriages of justice in the civil system.
So a good start would involve a massive change to procedures involving expert witnesses. While I understand that changes to the Rules of Civil Procedure are already in place, I fear they don’t go far enough.
We must do even more to eliminate the hired-gun mentality of expert witnesses. Judges must become better gatekeepers, for example, while lawyers should have more training in cross-examining expert witnesses. Experts must be confined to give testimony only within their sphere of expertise.
But that’s not enough. Past experience tells us we can’t rely on the good-faith efforts of lawyers and judges. We need to make their tasks easier.
All previous adverse comments, judicial findings, and disciplinary proceedings concerning the experts must be available to the other side and the court in addition to the fees paid to them along with all communications and documents exchanged with the side that hired them.
The other side should also have access to a list of all previous cases in which the experts have testified or provided a report. I’d go so far as to require the existence of an expert witness database that would contain references to every case in which someone has testified.
Bluntly put, we must make it as easy as possible to limit or discredit expert witnesses and bar them from becoming advocates. By avoiding false and overzealous expert testimony, we’ll go a long way towards curbing miscarriages in civil litigation.
Alan Shanoff was counsel to Sun Media Corp. for 16 years. He is currently a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].
