Expert witness bias and its effects on the justice system

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Expert witness bias and its effects on the
justice system

• Hearsay The Legal Podcast

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• Expert witnesses provide their professional
  opinion about a relevant area they specialise in
  that relates to the case. Other witnesses in
  court are limited to relaying facts of what they
  saw or heard and are generally not allowed to
  express their opinion, unlike expert witnesses.

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• The rules governing the admission of expert
  witness opinions as evidence are covered in Part
  3.3 of the Evidence Act 1995 (Cth) (Act),
  specifically section 79 which states that if a
  person has specialised knowledge based on the
  persons training, study or experience, the
  opinion rule does not apply to evidence of an
  opinion of that person that is wholly or
  substantially based on that knowledge. The
  opinion rule contained within section 76(1) of
  the Act says that evidence of an opinion is not
  admissible to prove the existence of a fact about
  the existence of which opinion was expressed.

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• However section 79 which states that if a person
  has specialised knowledge based on the persons
  training, study or experience, the opinion rule
  does not apply to evidence of an opinion of that
  person that is wholly or substantially based on
  that knowledge.  Expert evidence is usually only
  admissible if it complies with the Expert Witness
  Code of Conduct.

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• In a 2020 LawyersWeekly article, Dr Jason Chin, a
  leading legal scholar in this area, expressed
  concerns that expert witness partisanship and
  junk science is finding its way into
  courtrooms due to unscrupulous experts willing
  to tailor their evidence to the needs of their
  instructing client. In his 2020 Sydney Law
  Review article, Chin identified that Australian
  courts have resisted reading into a s 79
  requirement that expert opinion be shown to be
  reliable, meaning an experts bias conscious
  or otherwise towards the party paying their
  fees does not affect the admissibility of that
  evidence.

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• Still, evidence given by experts found to be
  blatantly partisan towards their instructors is
  given little weight by courts, such as
  in Universal Music Australia v Sharman Licence
  Holdings 2005 FCA 1242 where his Honour Wilcox
  J at 26 reproached expert evidence given on one
  partys behalf for being little more than a
  partisan polemic.

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• You can learn more about expert evidence from the
  experts perspective in Episode 10 of Hearsay
  with John-Henry Eversgerd, Senior Managing
  Director of Forensic Litigation Consulting at FTI
  Consulting.