Experts in court: A view from the bench.

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Abstract There has been a significant increase in the frequency of expert testimony over the past 25 years in Canada. As such, there has also been an increase in psychological expert testimony. In drawing from his experience as a litigator and judge, and reflecting on the articles by Yarmey and Peters, the author explains what it is that judges expect of an expert and how experts should be prepared. He also summarizes some of the legal rules concerning expert testimony. Finally, the author considers the future of expert psychological testimony. This paper is largely a reconstruction of remarks made by the writer during a panel discussion at the 60th Annual Convention of the Canadian Psychological Association in Halifax, Nova Scotia, May 20, 1999. My comments and observations here derive from 18 years in practice as a litigator and almost 10 years as a trial judge, either sitting alone or presiding with a jury covering the spectrum of litigation: criminal, civil, commercial, family, tax, and probate. I know you will understand that I should not be presumed to speak for my other colleagues on the Court. I have not restricted my remarks to the context of a criminal trial. Rather I will try to address a variety of cases where psychologists may have provided advice. These cases include: wrongful dismissal - emotional shock and depression following termination; worker's compensation - long-term employability and other human resources issues; personal injury - legitimacy of a diagnosis of post-traumatic stress disorder; medical malpractice - cognitive deficit and long-term memory impairment after botched surgery; probate testamentary capacity; and custody and access - children with learning, behavioural, and attention deficit disorders. In every one of these examples, it seems to me that psychologists may have relevant, necessary, and reliable evidence to give, which will assist me, as the trier of fact, in areas where I have no special training. Do. Daniel Yarmey and Mr. Martin Peters have prepared two excellent papers. Dr. Yarmey's is entitled Testimony: Does Eyewitness Memory Research Have Probative Value for the Courts? Mr. Peters' is entitled Forensic Psychological Testimony: Is the Courtroom Door Now Locked and Barred? In this article, I will comment on some of the significant issues raised by these authors in their papers from my perspective as a trial judge. I intend to do that by asking and answering the following questions: - What do judges expect of an expert and how should experts be prepared? How did we get to all of these rules? - Is R v. McIntosh and McCarthy (1997) a trendsetter? - How does it all look from where I sit? - WHAT DO JUDGES EXPECT OF AN EXPERT AND HOW SHOULD EXPERTS BE PREPARED Definition of an Expert An expert is someone who by virtue of special training, education, experience or skill is qualified to offer a relevant opinion to assist the trier of fact in arriving at a conclusion which the court is unable to reach without the expert's help. Thus the first step is to decide whether an expert is even necessary. An expert will not be required if the expert's opinion would not be anymore helpful than that of the judge or the jurors themselves. What we expect from an expert witness is an opinion as to the significance of, or the inference which may be drawn from, proved facts in a field in which the expert witness possesses special knowledge and experience beyond that of the triers of fact. The expert is then permitted to give such opinions to assist the jury or trial judge. But where the opinion is one which falls within the knowledge and experience of the trier of fact, there is no need for expert evidence and an opinion will not be permitted. Thus the test for the admissibility of an expert opinion is whether it is relevant and will assist the Court in making findings of fact or reaching conclusions which the Court is unable to do without the help of that expert. …