THE COURT EXPERT IN CIVIL TRIALS—A COMPARATIVE APPRAISAL

DOIhttp://doi.org/10.1111/j.1468-2230.1977.tb02417.x
AuthorJohn Basten
Publication Date01 Mar 1977
THE COURT EXPERT IN CIVIL TRIALS-
A
COMPARATIVE APPRAISAL
A.
INTRODUCTION
IT
is frequently necessary in the course of settling disputes for a
court to have recourse to scientific or technical information beyond
the realm of general knowledge.
In
the adversary system of litiga-
tion this need is usually met by allowing each party to call expert
witnesses
to
give evidence. The method of presentation of such
evidence often seems at odds with the objectivity espoused by
the scientist in research and, as a result, has been subjected to
considerable criticism from experts as well as from lawyers.‘ The
evils most frequently alluded to may be summarised as follows:
1.
The court hears not the most expert opinions, but those
favourable to the respective parties.
2.
The corrupt expert may be a rare phenomenon, but will not
necessarily be exposed by an inexpert cross-examination.
3.
The expert is paid for his services, and is instructed by one
party only; some bias is inevitable.
4.
Questioning, whether educive or hostile, by
a
lay barrister
may lead to the presentation
of
an inaccurate picture, which will
mislead the court and frustrate the expert.
5.
Where
a
substantial disagreement arises, it is irrational to ask
a
lay judge to solve it; he has
no
criteria by which to evaluate
the opinions.
6.
Success may depend
on
the plausibility or self-confidence
of
the expert, rather than his professional competence.
7. Those professions
on
which the judicial system is reliant are
antagonised by adversary trial procedure.
In
the United Kingdom, the
1972
Civil Evidence Act,2 and in the
United States the 1975 Federal Rules
of
E~idence,~ illustrate recent
attempts to alleviate the failings of the present system. Both contain
provisions designed to encourage the use of court-appointed experts
in
place of partisan witnesses. While court experts are the norm
in romanist and marxist legal systems, they are a rare phenom-
enon in common law iurisdictions.
In
treating the exDert as a witness
1
See,
2 Wigmore,
Evidence
(3rd ed., 1940),
5
536. note, 2, p. 645, and
SZ
1970, for citations to the principal contributions.
See
also, symposia on expert
testimony (1961) 34 Temple L.Q. 3.57 and (1935) 2 Law and Contemp. Prob. 401;
Thorn
v.
Worthing Skating Rink Co.
(1876) L.R. 6 Ch.D. 415n., 416n.
per
Jessel
M.R.
2
Civil Evidence Act 1972, c. 30,
s.
2; and see Law Reform Committee, 17th
Report, Cmnd. 4489 (1970).
3
See Fed. Rules Evid.,
r.
706,
28 U.S.C.A., p.
517
(1975).
4
see
e.g.
Kaplan, von Mehren and Schaefer,
German Civil Procedure
(1958)
71
H.L.R. 1193, 1242; Hammelman,
I‘
Expert Evidence
(1947) 10 M.L.R.
32, for
a
comparative discussion
of
French procedure: Cappelletti and Perillo,
Civil
Procedure in Italy,
Smit (ed.) (1965), pp. 230-235: Lenhoff,
The Law
of
Evidence:
A comparative study
of
Austrian and
New
York Law
(1954) 3 Am.J.C.L. 313, 326.
5
John
N.
Hazard,
Communist: and their Law
(1969), p. 400: Trusov.
An
Intro-
duction to rhe Theory
of
Evidence,
p. 127.
174
MU.
19771
THE COURT EXPERT
IN
CIVIL
TRIALS
175
the adversary system ignores the functional difference between the
evidence of an ordinary witness and the assistance provided to the
court by the expert. However, the court expert is a creature not
entirely unknown to the common law, and past experience
in
England and the United States allows
us
to evaluate the recent
reforms. It will be suggested that in place of the present system
panels of experts should be provided to assist the courts and that
this is a feasible solution, acceptable within the adversary system,
to a long-standing weakness in our civil trial process.
B.
THE
COURT
EXPERT
IN
ENGLISH
LAW
1.
The
Common
Law
origins
An American judge has stated, “The power and the right of a
judge to call an expert to his assistance dates from the fourteenth
century.” He was probably referring to an appeal of mayhem in
1345,
where it was reported that surgeons were summoned from
London to say if a wound was fre~h.~ We also find reports of cases
heard in
1494
and
1555
containing references to the practice of
calling masters of grammar to assist in interpreting legal documents,
and later in interpreting commercial instruments, Further, it was
common in those days to empanel juries with special expertise to
answer particular questions. Juries of matrons were believed to be
expert in deciding whether a woman was pregnant or not, and juries
of tradesmen were summoned to advise whether their colleagues
had breached the customs of the guild or been guilty of
malpractice.8
It is noteworthy that these examples of the use
of
experts in
court, almost certainly at the behest of the judge, pre-date the
modern trial procedure in which witnesses are called to present
evidence to the judge or jury. In the fourteenth and fifteenth
centuries juries were summoned because of their special knowledge
of the facts and it was not until the middle of the sixteenth century
that witnesses became common and our present law of evidence
began to deve10p.~ However, these early cases indicate the long
tradition
of
reliance
on
experts and their functional assimilation with
juries. When the role of the jury changed to that of forming
opinions
on
the basis of facts provided by witnesses, a function
6
Polulich
V.
Schmidt
Tool
Die
&
Stamping
Co.,
46 N.J. Super.
135;
134 A 2d
7
Anon.Lib.Ass. 28, pl.
5.
8
For a comprehensive survey
of
the early cases,
see
Learned Hand, “Historical
and Practical considerations regarding Expert Testimony
(1901)
15
H.L.R.
40;
see
also, Rosenthal, “The Development
of
the
Use
of
Expert Testimony” (1935)
2
Law and Contemp. Prob. 403,407.
9
Note, Act
of
5 Eliz.
1,
c.
9, pl. 12 (1562-63) which allowed for an early
procedure to compel witnesses to testify.
29, 36,
per
Gaulkin, J.C.C. (1957).

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