Ethical Responsibility Of Expert Witnesses and Testimony Discussion Response For years courts have called upon experts to assist the court in choosing the appropriate verdict in legal actions. Experts can minimize uncertainty by the application of their expertise, making their assistance relevant to courts. The target of expert testimony is to explain or clarify scientific, technical, or medical evidence for the jury’s benefit. According to Milroy (2017), an expert witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if
the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
the testimony is based on sufficient facts or data;
the testimony is the product of reliable principles and methods; and
the expert has reliably applied the principles and methods to the facts of the case.
While there is a myriad of reasons that an expert would need to expound their opinions in a court of law, usually it is to detail technical or scientific knowledge (Milroy, 2017). However, the opinions they disseminate to the jury must be deemed admissible by the judge before they are presented in a court of law. As more expert witnesses are brought into courtrooms to reflect on various complex subjects, concerns arise that experts are only “hired guns.” Hired guns are witnesses who take the position their clients (the attorney) want them to take in exchange for their fee (Ziemke and Brodsky, 2015). An expert should ask what the rules apply to the particular setting he or she will be involved in (Kadane, 2005). If utilized, experts are hired to encourage a prosecutor or a defense attorney to win a case.
In almost all cases, the expert is hired by one side or the other, sometimes to give direct testimony, sometimes to rebut the testimony given by others or sometimes both (Kadane, 2005). The attorney who hires you will make it clear to what they want you to testify. Given that experts are hired by one side, some may question whether they are neutral and target testimony. According to Kadane (2005), in all of this, there is an underlying tension between your responsibilities to your client and your duties to the court. The oath you take is ‘to tell the truth, the whole truth, and nothing but the truth,’ not ‘only those aspects of the truth that help my client.’ Thus, you must answer each question carefully and honestly.
The issue of ethical obligations of experts is an important topic. Many ethical goals and principles have been identified for expert witnesses that have been seated in the broader ethical principles for psychologists, psychiatrists, and other mental health principles (Brodsky and Gutheil, 2016). Among other guidelines, the following four aims cover much of the territory:
1. Assume a special responsibility to be fair and accurate.
2. Avoid partisan distortion or misrepresentation.
3. Actively disclose all sources of information.
4. Be prepared to distinguish between one’s expert testimony and legal issues and facts.
The first level is an ethical responsibility to the truth of the findings, as the expert understands the truth. The second level in the chain of importance is comprised of detailed obligations to the court. The third level is the party’s responsibility to be assessed and to the two arrangements of attorneys—the attorneys who have held you and opposing attorneys. The fourth level of the order is simply the commitment and your profession on the stand. The unethical behaviors of forensic experts are not visible (Brodsky and Gutheil, 2016). It is speculated that most unethical practices are neither seen by others nor have opposing outcomes.
According to FindLaw Attorney Writers (2016) two pitfalls for making a mistake as an expert are
1. Relying just upon information given by the attorney. The attorney is an advocate for their client’s position and legal rights. The expert isn’t.
2. Forgetting that you are an advocate only for your own opinions and methodology, however, not for the case itself. Expert witnesses are a lot of like fact witnesses in a single regard: each one should tell the truth legitimately, and with sincerity.
References
Brodsky, S. L., & Gutheil, T. G. (2016). Ethics in expert testimony. In The expert expert witness: More maxims and guidelines for testifying in court. 2nd ed. (pp. 44–48). American Psychological Association. doi: 10.1037/14732-010
FindLaw Attorney Writers. (2016, May 26). The Top Five Mistakes Expert Witnesses Make. Retrieved from https://corporate.findlaw.com/litigation-disputes/…
Kadane, J. B. (2005). Ethical issues in being an expert witness. Law, Probability and Risk, 4(1-2), 21–23. doi: 10.1093/lpr/mgi004
Milroy, C. M. (2017). A Brief History of the Expert Witness. Academic Forensic Pathology, 7(4), 516–526. doi: 10.23907/2017.044
Ziemke, M. H., & Brodsky, S. L. (2015). Unloading the hired gun: Inoculation effects in expert witness testimony. International Journal of Law and Psychiatry, 42–43, 91–97. doi: 10.1016/j.ijlp.2015.08.012