Medical expert witness in court Francesca M Brett MD., FRCPath., FFPath., Msc (FM )

1. Medical expert witness in court Francesca M Brett MD., FRCPath., FFPath., Msc (FM)

2. Background • Key element of the law of evidence is that: • Witnesses allowed to give relevant and factual evidence • (not allowed to express opinion) • Ultimate issue - criminal or civil liability is a matter for the • court to decide

3. Majority of criminal trials in Ireland (>200,000 p/a) are held in the District Court by a judge sitting alone, who is both a finder of fact and determiner of liability • More serious crimes (>2,000 p/a) Circuit Criminal Court with judge and jury. • Here jury (directed by judge as to law) is the finder of fact and the judge determines liability • Major criminal cases (>100 p/a) (murder and rape) are tried in Central Criminal Court with judge and jury

4. Unlikely that either the Judge or Jury in serious cases will possess the expertise necessary to determine complex issue such as DNA evidence etc. HENCE Expert witnesses and expert evidence form an important part of criminal and civil trials

5. “ It is a long established rule of our law of evidence that with certain exceptions, a witness may not express an opinion as to the fact in issue.. It is for the tribunal of fact – judge or jury as the case may be – to draw inferences of fact, form opinions, and come to conclusions” AG (Ruddy) v Kenny (1960) 941. L.T.R.

6. Expert witness is the exception – an opinion can be given by a witness who has expertise in an area that is relevant to the issue at hand It must be shown that the expert witness is necessary and relevant That the witness is a qualified expert. The main role and function of the expert is “to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgement by the application of these criteria to facts provided in evidence”. Per Lord President Cooper in Davie v Edinburg Magistrates [1953] SLT 54

7. R v Turner [1975] 1 QB 834 “ If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case, if it is given dressed up in scientific jargon, it may make the judgement more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion of matters of human nature and behaviour within the realms of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does” Lawton L.J.

8. In Ireland no judicial or leglislative guidance on the role of experts • The Law Reform Commission (December 2008) • recommended a formal guidance code for expert witnesses, based on principles laid down: • in • National Justice • Compania Naviera SA V Prudential Life assurance Co Ltd [1995] • (Ikarian Reefer)

9. Expert evidence presented to the Court should . .. 1. Be the independent product of the expert uninfluenced as to the form or content of legislation 2. Provide an independent unbiased assistance. 3. State the facts and assumptions and not omit material facts that could detract from concluded opinion. 4. Make it clear when a question or issues falls outside area of expertise 5. Be properly researched and if not state that 6. Communicate to the other sideany change of view that occurs after exchange of reports 7. Provide the evidence such as photographs etc to the opposite side at the same time as exchange of reports

10. Case presentation • 18 mth old boy admitted to Neurosurgical Unit • Fall from second floor window (no eye witnesses) • Single parent – having shower at the time. • O/A GCS 3. Cerebral oedema ++ . Subdural and retinal hemorrhages • T/f to ICU – and RIP 2 days later

11. Cause of death: • 1. Severe cerebral contusional injury with tentorial and tonsillar • herniation and resultant hypoxic brain damage. • Retinal and subdural haemorrhage • 3. Extensive fracturing of the vault and base of the skull. • Are the injuries consistent with a fall from a second floor window ????? • OR???

12. Head injury in children – complex and frequently raises the question of abuse Main question – “Is the injury consistent with the story”? “ The clinical history is perhaps the single most important clinical tool available to clinicians and to reject the carer’s version of events in favour of another requires the highest possible level of medical evidence. After all, the Doctor is effectively accusing the carer of lying” R v Lorraine Harris, Raymond Charles Rock, Alan Barry, Joseph Cherry, MichaelIan Foulder. Supreme Court of Judicature Court of Appeal (Criminal Division). July 2005

13. Picture of child abuse complex but 3 factors are thought to lead to increased risk Child factors – behavioural problems Parental factors – mental health problems, alcohol or drug addiction Socio-situational - single parent, new partner, unemplyoment

14. What is Shaken Baby Syndrome ??? Accepted definition depends on a triad of encephalopathy, subdural and retinal haemorrhages The phrase ‘Shaken Baby Syndrome’ evokes a powerful image of abuse, in which the carer shakes the child sufficiently to cause whiplash forces resulting in subdural and retinal bleeding

15. Shaken Baby Syndrome is an area where the opportunity for scientific experimentation and controlled trials do not exist but in which much rests on the interpretation of medical evidence In short we don’t know how much force is necessary to injure an infant’s brain Unfortunately people have been convicted of murder in cases of suspected SBS

16. R v Sally Clarke • First son Christopher was found dead in his cot at 11 weeks on Dec 13th 1996 • Second son Harry was found dead on January 26th 1998 at 8 weeks. • On both occasions she was alone at home with the babies and there was evidence of trauma which could have related to attempts at resucitation. • She and her husband both arrested on Feb 23 1998 on suspicion of murder • In 1999 she was convicted of killing her baby sons Christopher and Harry • Appealed and appeal dismissed 2000 • Referred back to Court of Appeal by the Criminal Cases Review Commission and convictions were overturned on January 2003

17. Two major issues emerged in the Sally Clarke case • Non disclosure of evidence – microbiological tests performed on Harry’s blood, body tissue and CSF were discovered. They were submitted to medical experts and interpreted as that death may have been due to natural causes • Expert witness evidence – Professor Sir Roy Meadow’s stated at the Sally Clarke trial that there was a 1 in 73 million chance of a woman of her background having 2 cot death. He likened the probability of backing an 80-1 outsider in the Grand National 4 times running and winning each time.

18. Meadow’s rose to fame for his 1977 work on Munchausen Syndrome by Proxy • He endorsed the dictum “one sudden infant death is a tragedy, two is suspicious and three is murder until proven otherwise” Meadow’s Law in his ABC book of child abuse • He claimed that “there is no evidence that cot deaths runs in families” but there is plenty of evidence that child abuse does” • Meadows’s 1 in 73, 000 was rejected by the Royal Statistical Society as having “no statistical basis”

19. In the recent highly-publicised case of R v. Sally Clark, a medical expert witness drew on published studies to obtain a figure for the frequency of sudden infant death syndrome (SIDS, or "cot death") in families having some of the characteristics of the defendant's family. He went on to square this figure to obtain a value of 1 in 73 million for the frequency of two cases of SIDS in such a family. "This approach is, in general, statistically invalid. It would only be valid if SIDS cases arose independently within families, an assumption that would need to be justified empirically. Not only was no such empirical justification provided in the case, but there are very strong a priori reasons for supposing that the assumption will be false. There may well be unknown genetic or environmental factors that predispose families to SIDS, so that a second case within the family becomes much more likely. Society does not tolerate doctors making serious clinical errors because it is widely understood that such errors could mean the difference between life and death. The case of R v. Sally Clark is one example of a medical expert witness making a serious statistical error, one which may have had a profound effect on the outcome of the case. The Royal Statistical Society 23 October 2001

20. R V Canning 2002 • Accused of killing 2 sons Jason (6 wks) and Matthew (18weeks) • Gemma (RIP 13 weeks) and Jade survived • All suffered at some time ALTE • Differed from S Clarke as no physical evidence • Prosecution rested on “perceived suspicious behaviour” rang husband rather than emergency services • Meadow’s claimed that boys not genuine cot death as healthy up to death (contradicting other experts) and that she was a MSbP sufferer. • Conviction later overturned as unsafe in Dec 2003.

21. On June 21 2005 Meadows appeared before • GMC fitness to practice tribunal • On July 13th ruled that his evidence in R V Clarke was misleading and incorrect • On July 15th decided he was guilty of serious professional misconduct (later appealed)

22. SUMMARY 1. • Expert witness in court is in a somewhat exalted role in providing assistance on a matter outside the ordinary experience of the court. • He/she participates in the proceedings. Usually retained by one of the parties and unlike an ordinary witness is usually paid. Provides factual data, performs an advisory role i.e identifying strengths and weaknesses and lays the groundwork for possible settlement

23. SUMMARY 2. • The finder of fact is free to disregard expert opinion or in a case involving 2 or more experts to choose between conflicting opinions • The relationship between law and science is tainted by the consequences of miscarriages of justice that may occur. • Variously described as “love-hate”,”clash of cultures” and a “marriage of opposites”

24. Reliability of scientific evidence • Frye v United states – led to • “general acceptance test ” • the scientific • theory or technique on which the expert relies must be endorsed by a • substantial majority of specialists in the field

25. Daubert v Merrell Dow Pharmaceuticals,Inc 1993 Standard for expert evidence within the scientific community should rest on both a reliable foundation and be relevant to the task at hand ~ Whether the theory or techniques had been or can be tested ? ~ Whether it has been subject to peer review and publication? ~ What is the known of potential error rate? ~ The existence and maintainence of any standards controlling its operation? ~ Whether it has attracted widespread acceptance within the relevant scientific community?

26. Expert Witnesses • Have a duty to the court • Are not advocates • Provide the judge and jury with information to make a decision

27. SO • Here we have single parent, living alone – lively child left unattended - does this raise red flags???? • Autopsy oedematous brain, subdural and retinal haemorrhages - does this raise red flags???? • Is this Shaken Baby Syndrome??????

28. CONCLUSION • The use of expert witnesses is likely to continue • Courts are wary • Expert has a difficult role • ~ Needs to keep it simple • ~ Be able to explain the scientific basis