Social Justice: Expert witness cross-examination conundrum

There are various strategies available to counsel in attempting to impeach an expert’s credibility. Cross-examination on the basis of prior inconsistent statements is a well-known strategy. As seen in the recent Jian Ghomeshi acquittal, this technique is a powerful weapon in attacking the credibility of any witness. Another strategy is cross-examination to establish bias, attempting to establish the witness’ partisanship.

These strategies may fall short. Counsel may be unable to locate any prior statements. The expert may not have made or published prior inconsistent statements. Moreover, bias is difficult to establish even where the expert has a long history of providing evidence to one side in litigation.  

But what of adverse findings of credibility made against an expert in prior judicial determinations? May counsel use such findings in cross-examination to attack the credibility of an expert?  

That issue came before the court in Bruff-Murphy v. Gunawardena, 2016 ONSC 7. One of the defence experts had been the subject of three prior judicial determinations rejecting his evidence for reasons of partisanship. The expert had a history of stepping outside his role as an impartial witness and had become an advocate for the defence.

Based on past precedent, however, the court refused to permit cross-examination based on the prior judicial determinations. In the absence of a jury, such a finding is of little significance as the trial judge will be aware of the prior determinations. However, prohibiting such cross-examination may be of great significance in a jury case as the jury would not be aware of the prior determinations. The jury may place undue reliance on the expert’s testimony, unaware of the expert’s history.

The rationale for not allowing such cross-examination was stated in an Ontario Court of Appeal decision, R. v. Ghorvei (1999), 46 O.R. (3d) 63. Such cross-examination is not permitted as the prior judicial determination “is, in essence, no more than an opinion on the credibility of unrelated testimony given by this witness in the context of another case.”

Why the opinions of other judges are not worthy of consideration puzzles me. Surely, an opinion of a judge rejecting an expert’s testimony is deserving of some consideration. Surely, every adverse determination is a potential red flag concerning the partisanship of the expert. But I understand there may be a practical issue in attempting to utilize the prior determinations. Doing so may require a consideration of the foundation of the prior determinations. Still, how difficult is it to place a prior determination in context?  

Indeed, in Ghorvei, the court was able to place the prior determination in context, concluding it was unfounded.
Allowing cross-examination would thus have been highly prejudicial. But the witness in the Ghorvei case was not an expert witness who was being paid to provide his testimony and there was only one prior determination. Should the Ghorvei reasoning apply to expert witnesses who have suffered several prior adverse determinations? I pose this question in the context of two inquiries, both of which focused on the problem of partisan testimony by biased or hired-gun expert witnesses: Justice Coulter Osborne’s “Report on Civil Justice Reforms” (2007) and Commissioner Stephen Goudge’s “Inquiry into Pediatric Forensic Pathology in Ontario” (2008).

The Osborne report referred to an expert evidence working group complaining “that too many experts are no more than hired guns who tailor their reports and evidence to suit the client’s needs.”

Rule changes were implemented in 2010 in an effort to fix the problem. Yet the problem of partisan expert witness testimony remains. Judges and tribunals continue to criticize the partisan experts appearing before them. Even Justice Douglas Cunningham’s review of the SABS dispute resolution system in 2014 commented on biased expert assessments. We could leave the problem to the respective governing bodies for each discipline of expert. However, we have seen how that has worked, or rather not worked, as the problem of partisan experts continues seemingly unabated. We could advocate for beefed-up codes of ethics and more stringent discipline, but those are matters outside the jurisdiction of the legal profession.

There are no easy solutions to the problem of partisan experts. In an ideal world, experts who testify or provide reports for litigation would adhere to their oath to provide unbiased impartial testimony/opinions. But we don’t live in such a world.  

One partial solution may be to loosen the rules by permitting cross-examination based on prior judicial determinations. Perhaps the threat of such cross-examination will cause some experts to refrain from partisanship. Perhaps such cross-examination will expose partisan experts to juries. I understand that some judges make mistakes. A judicial determination may be erroneous. However, the existence of multiple judicial rebukes is surely worthy of some consideration. And, yes, I understand that just because an expert acts in a partisan manner in one case doesn’t mean she will do so in the next case. However, having acted in a partisan manner in one or more cases, where is the harm in having the expert justify himself in the context of the prior determinations?

I’d go a step further. I’d set up an expert witness database. Every time an expert testifies or provides a report for use at trial, an entry would be made into the database indicating the nature of the testimony or report, which side retained the expert, and the nature of any judicial determinations made concerning the testimony or report. This database would be open for public view to the general public. Perhaps the miscarriage of justice that occurred in the Bruff-Murphy action would have been avoided had the defence expert been cross-examined on his three adverse judicial determinations.

Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].

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