|Letters & Opinions|
British False Memory Society.
BFMS Newsletter, Vol. 13, No. 2 - October 2005
The role of the expert witness by Dr Janet Boakes FRCPsych
Medical expert witnesses have had a bad press in recent months as three experienced and high profile experts have come under the spotlight. Professor Sir Roy Meadow was struck off the Medical Register following his role in the conviction of Sally Clark; Professor David Southall banned from work in child protection for three years and Dr. Camille San Lazaro heavily criticised by the GMC after she admitted giving inaccurate evidence about sex abuse to a review tribunal. As a consequence, many child psychiatrists and paediatricians are now wary of giving expert evidence, with fears of the effect on child protection work. The Courts, never very keen on expert evidence in the first place, are even more reluctant to accept it, preferring to believe that most matters can be decided by a jury using its collective common sense.
The expert witness differs from the ordinary witness to fact. A fact witness can only testify to what he has experienced for himself. An expert is allowed to base his opinion upon all the available information drawing upon his professional knowledge and experience. The psychiatric expert is qualified by knowledge, training and experience, to give an opinion on psychiatric issues in order to assist the court about matters that are unlikely to fall within the experience of the jury.
Any expert evidence which advances a novel scientific theory or technique should be subjected to special scrutiny to determine whether it meets a basic threshold of reliability. This is, of course, the nub of the matter in historical allegations of sexual abuse where the theory of repressed and recovered memories is advanced. The argument is by no means over although it has perhaps gone underground, and the whole concept of recovered/repressed memory is one that falls under the rubric of a novel scientific theory.
In the USA the Daubert standard sets out four criteria for determining whether expert testimony meets the requirement to constitute scientific knowledge. These are:
1. whether the theory can be, or has been, tested (can it be falsified?);
2. whether the theory has been subjected to peer review and publication;
3. in the case of a technique, what is the potential rate of error;
4. whether the theory has gained acceptance in the academic and scientific community.
(For a more in depth explanation of Daubert see following article)
There is no such standard in the UK; the closest we come is the Bolam test used for professional negligence that holds that a doctor is not negligent if he has acted "in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art - even if there is a body of opinion which would take a contrary view."
What makes an expert?
In the UK there are no minimum standards that must be met by aspiring experts. Anyone can declare himself to be an expert, all that is needed is some practical experience or a professional qualification. One expert in a historical sex abuse case was a therapist who described herself as 'working with different worlds and different levels', leaving judge and jury somewhat baffled. She had a professional qualification and experience, but absolutely no knowledge of memory, psychology, mental illness or the relevant research literature.
It is the judge alone who decides who is an expert and whether or not to allow the inclusion of expert testimony. Some judges will only admit psychiatric evidence to show that the accuser had a recognised mental illness at the time the allegation was made, and will exclude information that points to an iatrogenic condition, such as that arising from therapy or counselling. They regard this as within the capability of the jury to determine. It is rare, in my experience, for there to be clear signs of formal mental illness and most false allegations occur in people who are anxious and depressed and seeking explanations for why their lives have gone wrong. However, one case in which I recently gave evidence was dismissed when I was able to show, from the medical records, clear evidence of paranoid ideas, delusions and hallucinations that directly preceded the first allegations.
This is exceptional and, more usually, the expert will want to review competing hypotheses to explain how someone may come to make delayed allegations of sexual abuse; why the testimony of an accuser may change over time; or how any symptoms might have come about.
Judge's dislike the battle of experts and would prefer not to allow the expert into court. Lord Justice Judge held that "if the outcome of a criminal trial depends on the serious disagreement between reputable experts, it will be unwise and therefore unsafe, for the prosecution to proceed". In one case in which I was instructed, my report was so much at variance with that of the prosecution's expert that the judge declared "If even the experts cannot agree, how can we expect the jury to do so" and stayed the case. Some judges restrict what can be admitted, allowing evidence about how memory works, but excluding evidence about the role of suggestion and external influence, others choose to hear evidence in a voir dire (preliminary hearing) before deciding on its admissibility.
Broadly, we might divide the expert into one of three types. The scientific expert will be called to educate the court on the relevant scientific literature. In cases of historical allegations of sexual abuse this will probably cover the science of memory and of suggestion. It may also cover theories of repression and dissociation, 'recovered memory' and the 'false memory syndrome'.
The second type of expert may be called as much for his clinical expertise as for his familiarity with the scientific literature. He will wish to review any medical records and give an opinion on the presence or absence of formal mental illness in the accuser that might affect the testimony given. A history of psychiatric illness does not automatically make an allegation untrue and the medical expert can help to tease out the development of the allegation vis-à-vis the illness; where it exists, and determine if the mental disorder has contributed to the allegations being false, or is an incidental finding that does not challenge the reliability of the accuser.
The 'clinical expert' may be asked to say whether any symptoms displayed by the accuser are 'consistent with' having been abused. This phrase 'consistent with' is much beloved of the legal services and social services. It must be borne in mind, and conveyed to the Court, that 'consistent with' is not the same as 'diagnostic of' and will fail to exclude those cases in which the symptoms arise from other causes. The clinical expert should be as well versed in the scientific literature as the first expert as he too may be giving evidence that will touch on the credibility of the accuser. An expert is not allowed to state an opinion about whether or not the accuser is telling the truth - that is for the jury, or in civil matters, the judge - but his evidence may help the trier of fact to his conclusion. In practise, the clinical expert, in cases of alleged sexual abuse, is likely to draw upon his clinical experience as the basis for his expertise and to be less familiar with the relevant literature and this can lead to misleading information coming before the court.
The third expert is one who acts in a consultancy manner, assisting the legal team to understand the psychiatric aspects but not necessarily being called to give evidence. These roles are not discrete and may easily elide with each other.
The debate of recovered memories and false memories divides along academic and clinical lines. It is probably true to say that the academic and research debate is more or less over. However, within the clinical community, belief in the recovery of memory still, to a large extent, holds sway, especially in the area of trauma. What this often leads to is the opposition in court of an expert who draws upon the scientific literature opposed to one who draws upon clinical experience, usually with genuine 'victims'. This presents a potential problem as the two experts are drawing upon different, not always compatible, fields of knowledge.
What does the future hold
Paradoxically, one of the problems with the Meadows / Southall cases was the absence of a robust adversarial position of expert against expert. Meadows had become the experts' expert, training those who came after him, training also the judges who tried the cases, and as the leading opinion of the day, he was unassailable. It was this that ultimately led to his downfall and brought the whole field of expert evidence into disrepute.
In today's complex and technical society the need for experts to assist the Court is unlikely to disappear, although in keeping with so many other areas, it will probably be hedged about with restrictions. It is likely that there will be increasing calls for training, accreditation and monitoring and some professionals have advocated the introduction of a Code of Ethics for experts.