What makes a court find expert evidence unpersuasive?

[Be warned - this is an article about expert witness evidence in court, but there is nothing specifically related to accountancy or financial matters in this post!]

In a recent Court of Appeal case the judgment records, “We very much regret to have to conclude that we found Dr C a somewhat unsatisfactory witness on whose evidence we could not, on analysis, place reliance”.  What had gone so wrong that the Court found the evidence of this professionally qualified expert witness of no value?

To understand that fully we have to understand a little of the background.  The appellant in the case, Mr W, had been on trial for an alleged sexual assault on an 11 year old girl.  But Mr W was a man of limited intelligence.  The issue was whether Mr W was so disadvantaged intellectually as to be not fit to stand trial.  That would be so if his limited intelligence resulted in him not being “of sufficient intellect to comprehend the course of proceedings in the trial, so as to make a proper defence . . . and to comprehend the details of the evidence”.

Clearly if a defendant is unable to understand what it is he is accused of, or to understand the evidence given against him, he will be unable to adequately instruct his own lawyers as to which elements of the prosecution case he particularly challenges and why.  If the defendant is unable to do that he cannot obtain a fair trial by the normal procedure and must be dealt with by alternative measures.  (That does not mean that he can do anything he pleases with impunity and not be punished – but it does mean that the usual court procedures, and punishments, need to be modified to accommodate his lack of mental capacity.)

At Mr W’s Crown Court trial the issue of his ‘fitness to plead’ had not been raised by his legal team.  He was convicted, but subsequently lawyers acting for him did wish to raise that issue and this formed the basis of an appeal to the Court of Appeal.

The defence team had instructed Dr C, a consultant forensic psychiatrist, who saw Mr W and, in his report, gave an expert opinion to the effect that “the appellant’s IQ was associated with significant disability and social handicap; he was vulnerable to anxiety under stressful conditions; his IQ assessment demonstrated relative weakness in relation to attention and concentration and verbal skills” and furthermore “he had a very considerable level of anxiety and could not accept that he had done anything wrong”.  As a consequence of that, in Dr C’s opinion, “that level of anxiety and his level of sophistication were such that he could not defend himself properly”.

Dr C also expressed concern that Mr W, because of his limited intellect, would either stick rigidly to a position based on inadequate understanding or he would accept suggestions made uncritically.  In other words there was a significant risk that, when questioned, Mr W might agree with whatever his questioner suggested to him irrespective of the truth of the matter.  By so doing Mr W could falsely incriminate himself.

The prosecution team also instructed an expert, Dr M, a consultant psychiatrist.  Dr M also considered that “the appellant was unfit to plead because he could not understand the details of the evidence or the charge and could not instruct lawyers effectively”.

However prosecuting counsel in the Appeal Court contended that, contrary to the views of both experts, Mr W had been fit to plead and his conviction should stand.  Ultimately the Appeal Court judges accepted that contention and, rejecting the opinions of both experts, upheld Mr W’s conviction.

Explaining their reasons the Appeal Court judges considered that key contemporaneous evidence of Mr W’s mental abilities was provided by the record of the taped interview of Mr W in the course of the police investigation.

The judges noted that Dr C did not list that interview transcript as having been considered by him in the preparation of his report.  Dr C was questioned about this during the appeal hearing.  The judgment notes, “although he claimed he had considered [the interview] before giving evidence in the appeal, we find that claim difficult to accept”.  Further “he was, however, dogmatic in maintaining the assessment that he had made in his report that the appellant was unfit to plead [but] he could not provide satisfactory answers to the questions posed to him that called into question the basis on which he had made that assessment or how his views related to the [relevant legal] criteria”.

In the (non-scientific) view of the Appeal Court judges Mr W’s behaviour in the police interview showed that he was not suffering from some of the weaknesses that Dr C ascribed to him in his report.  In short, in the opinion of the Appeal Court judges Dr C’s views were not only dogmatic, they were mistaken.

Turning to Dr M’s report, the judges were not so critical.  However the opinions expressed in the report had been supplemented by Dr M’s oral evidence in response to counsel. When the judges reviewed the totality of Dr M’s evidence and the contemporaneous evidence (including the interview transcript and the fact that no-one dealing with Mr W before or during his original trial had apparently considered that he may be unfit to plead) against the relevant legal criteria they concluded that Mr W had been fit to plead.

As the Appeal Court remarked, “the fact that psychiatrists agree is not enough, as this case demonstrates; a court would be failing in its duty to both the public and a defendant if it did not rigorously examine the evidence and reach its own conclusion”.

David

Comments
cymraeg_draig's picture

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cymraeg_draig | | Permalink

So the judges are claiming that they actually know better than two highly qualified experts ?

This seems to me to be yet another demonstration of the crass arrogance of certain judges, and the lottery nature of British justice (or injustice) which can so often depend upon which judge you are lucky, or unlucky, enough to get.

There is, in my view, a good arguement for judges being sackable, and being subjected to regular checks on their competence. However, who would do this or how it could be done without political interferance is a thorny issue.

In the above case, given the agreement of 2 experts, and the rather weak judgement, I would suggest the matter should be further appealed by way of judicial review.

 

stepurhan's picture

What about incompetent expert witnesses?

stepurhan | | Permalink

CD, just because someone is cited as an expert, do you not think their evidence should be subject to examination? The report states that Dr C "could not provide satisfactory answers to the questions posed to him that called into question the basis on which he had made that assessment or how his views related to the [relevant legal] criteria". I would expect that anyone acting in an expert witness capacity should expect to have their opinion questioned and should be prepared to back up that opinion when questioned. If an expert witness is unable to do so, does that not cast doubt on the value of their evidence? I will grant that, on the facts here, the opinion of Dr M appears more robust but it is difficult to judge on the limited facts available. However, if Dr C can't justify his own opinion, then Dr M's opinion effectively stands alone. It is not a case of two experts agreeing the same diagnosis.

I think it is also important to remember that this is an appeal case where fitness to plead was never raised in the orignal case. This is effectively not a case of new evidence coming to light, this is something that was readily available for all to test when the original trial took place.  Maybe the defence team was incompetent in not bringing it up in the first place, but if the situation is so borderline nobody considered it at the original trial then i don't think it's unreasonable that the evidence after the fact needs to be extremely robust.

Let us not forget the effect that the court blindly accepting the "expert witness" Roy Meadows had in the case of Angela Canning.

cymraeg_draig's picture

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cymraeg_draig | | Permalink

CD, just because someone is cited as an expert, do you not think their evidence should be subject to examination? The report states that Dr C "could not provide satisfactory answers to the questions posed to him that called into question the basis on which he had made that assessment or how his views related to the [relevant legal] criteria".

Posted by stepurhan on Sun, 24/04/2011 - 17:16

 

An expert witness is there to give his opinions because he is an expert on something which the court is not.  it is not the role of either side to attack his opinion - rather, if the opposition disagree with his opinion, then they should put their own experet before the court.

As for "legal criteria" - that is certainly not a question for an expert witness to answer - that is a matter for the court to assess before the expert is accepted as a witness.

 

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I think it is also important to remember that this is an appeal case where fitness to plead was never raised in the orignal case. This is effectively not a case of new evidence coming to light, this is something that was readily available for all to test when the original trial took place. Maybe the defence team was incompetent in not bringing it up in the first place, but if the situation is so borderline nobody considered it at the original trial then i don't think it's unreasonable that the evidence after the fact needs to be extremely robust.

 

Posted by stepurhan on Sun, 24/04/2011 - 17:16

 

The reason why this was not raised at the original trial is irrelevent. The fact is (from the reports) that it should have been. The role of the court should be to ensure that justice is done, not that some silly rule is obeyed. Just because the courts, solicitors, barristers, police etc are incompetent, that should never mean that someone is denied real justice. Unfortunately too many of the judiciary are more worried about being seen to follow the rules than they are about ensuring that justice is done.

davidwinch's picture

Experts and "legal criteria"

davidwinch | | Permalink

C_D & Stephen

The relevant legal criteria in this case were based on previous case law concerning 'fitness to plead'.

I do think that both experts should have been aware, or should have been made aware by the lawyers who instructed them, of that case law and those criteria when they were first instructed.  Without that knowledge the experts could not fully comprehend the issue they were being asked to address.

(In practice I find that instructing solicitors rarely deal with the relevant legal context and issues when instructing experts - more often the instruction is akin to, "Please do whatever it is that you do"!  Fortunately the best experts do acquaint themselves with the legal background before undertaking the work.)

It seems to me that the Court of Appeal judges did not consider themselves to be 'better psychiatrists' than the experts whose opinions they received.  That would have been quite wrong of the judges had they reached their different conclusion on that basis!

What the judges did consider was that one of the experts did not impress them as regards his credibility.  He claimed to have considered a key part of the relevant evidence but the judges found that claim "difficult to accept".  They also found his views dogmatic rather than reasoned.  It followed that the judges dismissed his opinion as unreliable.

With regard to the second expert the judges apparently considered that Crown counsel's probing of his views revealed them to be less firmly held than appeared from his written report, and he gave some ground in the witness box.  The judges do not criticise him for that (they considered him more open minded and less dogmatic than the other expert) but they clearly felt that the second expert had, in forming his opinion, given insufficient weight to the contemporaneous evidence and perhaps had not stuck closely enough to the relevant legal criteria.

It is always open to judges, and indeed juries, to reject the opinions of expert witnesses and make up their own minds.

As for justice being done, in this case the Appeal Court judges do appear to have taken into account their own view that - whatever the legal rules - the outcome of the trial for the convicted defendant had been the best one (he was given a 3 year community order and was holding down a job) and they noted that that order would not have been available to the Crown Court judge had Mr W been held to be unfit to plead.

Had the Appeal Court allowed the appeal they would have had to unwind that community order and they clearly did not wish to do that.

One might argue that that should not have been a factor in their reaching their decision on the appeal, but they appear to have adopted a "the best outcome is the most important thing" approach.

David

Surely

The Black Knight | | Permalink

The courts must have known that the sentencing had compensated on the basis of a best outcome, before taking this to appeal.

Are these things never pointed out to the appellants legal team to save the legal aid bill.

Clearly the sentencing judge did not think the guy was guilty otherwise he would not have let a potential rapist back onto the streets, or is that a bit naive ?

I doubt if either expert witness knew the case was going to be all about them.

stepurhan's picture

What alternatives were available?

stepurhan | | Permalink

If the expert witness evidence had been accepted as proving he was unfit to plead, what would have happened? My understanding is that the evaluations did not assess whether he was incapable of understanding what he had done (and thus incapable of knowing he was committing a crime) but his ability to understand the legal process and his options there. I appreciate the immediate effect would be to unwind the sentence already passed down but what would happen next. I'm also curious as to why the community order would not have been an option if he had been unfit to plead.

@CD I agree that counsel should not be able to question the expert's opinion per se. However, I do think they should be able to test that the person actually is an expert, and has applied that expertise properly to the task at hand. Questioning how, using their expertise, they reached their opinion is a way of doing that. An expert applying his knowledge properly should be able to explain his reasoning. It would appear that Dr C could not. I have been involved in an expert witness case, as assistant to the witness in question, and I have seen such questioning first hand.

I also disagree with you that the expert should not answer the question of "legal criteria". The whole point of calling the expert witnesses was to see if the defendant met the legal criteria. At the very least, as David said, their reports should have been focused towards items relevant to those legal criteria. Otherwise you risk a pointless exercise where the information the expert witnesses supply is not enough to determine whether the legal criteria are met or not.

cymraeg_draig's picture

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cymraeg_draig | | Permalink

also disagree with you that the expert should not answer the question of "legal criteria". The whole point of calling the expert witnesses was to see if the defendant met the legal criteria. At the very least, as David said, their reports should have been focused towards items relevant to those legal criteria. Otherwise you risk a pointless exercise where the information the expert witnesses supply is not enough to determine whether the legal criteria are met or not.

 

Posted by stepurhan on Tue, 26/04/2011 - 10:00

 

The whole point is that expert witnesses are experts in their particular subject, they are not experts in law and should not be expected to be. Further, by imposing a set of "criteria" there is a risk of hampering or distorting their professional opinion.

What I find interesting about this case is that 2 experts were heard. Both agreed that the defendant was unfit to plead. One was, apparently, not good at explaining or at least at putting across his reasoning.  That does not mean his opinion was wrong, merely that he was not good at exp0laining it.  The other expert agreed that the defendant was unfit to plead, but, it seems wavered a little under cross examination. Again this proves nothing other than that he was perhaps not the strongest of characters.

However, their is NO mention of any expert actually stating that the defendant was fit to plead, yet that is the decision made by the court. Therefore the court reached a conclusion which was contrary to the opinions of 2 experts, and did so without any evidence being placed before it to substantiate that opinion.  Very perverse.

 

ShirleyM's picture

Cynic

ShirleyM | | Permalink

Call me a cynic if you like, but couldn't this be a case of the defendents legal team losing the case and then thinking up a reason for an appeal?

I am sure there are many instances of people pretending to be pschycologically (excuse the spelling please) unsound if it means they get off scot free, or a lighter punishment.

None of us were there, none of us know what was actually said, how it was said, and how unreliable the expert witnesses appeared to be.

It may well be that the judge decided the case of his diminished responsibility wasn't proved, or disproved, well enough for him to change the sentence.

cymraeg_draig's picture

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cymraeg_draig | | Permalink

Call me a cynic if you like, but couldn't this be a case of the defendents legal team losing the case and then thinking up a reason for an appeal?

 

 Posted by ShirleyM on Tue, 26/04/2011 - 12:34

 

Highly unlikely. Defence teams siply dont work like that, and no one is going to risk their professional reputation acting in that way.

 

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I am sure there are many instances of people pretending to be pschycologically (excuse the spelling please) unsound if it means they get off scot free, or a lighter punishment.

 

Posted by ShirleyM on Tue, 26/04/2011 - 12:34

 

And instead of a sentence laid down by maximum tarriffs - risk an indefinite period in a mental institution?  Risk the courts taking away their control of their own property? The potential ramifications of such a ruling are immense and unpredictable.

It is, in fact, very rare for someone to plead insanity etc. 

 

Looks like the Judges watched the Video

davidross | | Permalink

If I read the report correctly, they watched the Defendant on video/listened to the tape recorded at the Police Station (which the Head Doctors did not) and saw through the psycho babble.

In a "the King has got no clothes" spirit, may I suggest that it is no more complex than that?

stepurhan's picture

Finding evidence wanting is not ignoring it

stepurhan | | Permalink

CD, you keep saying the court ignored the expert witnesses. This is not the case.

Dr C stated that the defendant would behave in certain ways. The court noted the interview transcript, which Dr C did not cite as reviewed, showed the defendant exhibiting behaviour that appeared to contradict this. Dr C's response to this appears to be him attempting to bluff his way through not having reviewed this. He claims that he did review it but stands by his views without explaining the contradiction. That is not simply being bad at explaining his opinion, if he is correct then he should have some explanation of how this apparent contradiction arose. If he did review the interview, why isn't it cited and why is he unable to explain the apparent contradiction? If he didn't review it then he has effectively lied to the court. Either way, his competence as an expert witness is seriously called into doubt.

Dr M appears to have made an assessment that fit the legal criteria, and then moderated it so it didn't under questioning. I am surprised that you dismiss this as him being "perhaps not the strongest of characters". Say that an eye-witness made a statement clearly identifying a defendant as committing some crime. Under questioning, the eye-witness admits that they only saw the person briefly and at a distance, but their height, build and broad facial features, such as a beard, match the defendant. Is this moderation merely weakness of character or does it open the possibility they did not see the defendant at all?

You therefore have two experts, neither of whom provide compelling evidence the defendant is unfit to plead. I am not expecting either to be legal experts, but I would expect those instructing them to have informed them of the Partridge criteria and hence the focus of their reports. I acknowledge that there is no positive evidence of fitness to plead against this, but does there need to be legally? Surely the presumption if fitness to plead unless shown otherwise. If this is not the case, why are psychiatric experts not being called in on every legal case? For that matter, doesn't Dr M's moderated opinion, that falls below the legal criteria for unfitness to plead, actually constitute positive evidence?

Given that your complaint is a lack of justice, I am also curious as to your view on the sentence that he was under. My understanding is that this appeal would not absolve him of the crime but would alter his treatment by the courts. For me, this is the only indication that he might be unfit to plead. He still has his freedom and employment, giving him a place in society. Allowing his legal team to mount an appeal that could see him locked up, albeit in a hospital, does not sound like it is in his best interests.

Monsoon's picture

Fitness to plead

Monsoon | | Permalink

Fitness to plead is a difficult one. I know someone who was being convicted of fraud in 2 different jurisdictions and was therefore accorded different legal aid in each. One solicitor went down the normal defence route. The other went in immediately with unfitness to plead. Or would have done, had the police in the second case gotten their act together in time - the guy was released from prison for the first lot of offences and hasn't been seen since, so the defence hasn't had a chance to try the unfitness to plead approach. Why the two different approaches I don't know, but perhaps suggests that some solicitors just don't consider it when perhaps they should.

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