What should be done if one side considers that the expert instructed by the other side lacks the necessary expertise to support his opinion? That issue arose in a recent case before the Court of Appeal.
Violence and death
The case of R v Clarke and Morabir [2013] EWCA Crim 162 was a case of murder in which both prosecution and defence had instructed expert pathologists. It was alleged that at some time on 6 November 2010 the victim, Bradley Hamilton, had been subjected to very serious violence as a result of which he suffered multiple injuries. At 11:27 p.m. on that day the defendants called the emergency services. Paramedics arrived at 11:33 p.m. and unsuccessfully attempted to resuscitate Mr Hamilton for about 20 minutes but then pronounced him dead.
The prosecution case
The Crown’s case was that Mr Clarke had attacked Mr Hamilton in the early part of the evening of 6 November and that, as a result of the injuries suffered in the attack, Mr Hamilton had either died, or was near to death, at the time that Mr Clarke left Mr Hamilton’s flat at about 9.30 p.m. that evening. The prosecution case was that Ms Morabir remained in the flat with the dead or dying Mr Hamilton whilst Mr Clarke was out and that she was in touch with him by mobile telephone. It was alleged that events after 10.30 p.m., in which both defendants were involved, were an elaborate cover up.
The defence case
The case for Mr Clarke at the trial was that he admitted that he had assaulted Mr Hamilton early in the evening but not so as to inflict any injuries that could have led to his death. Mr Clarke’s case was that he had left the flat at about 9.30 p.m. and when he returned Mr Hamilton was lying on the living room floor unconscious. Mr Clarke asserted that he had attempted, clumsily, to apply resuscitation to Mr Hamilton for over 20 minutes but without success. He and Ms Morabir then called the emergency services at 11.27 p.m.
A key issue
A key issue was whether Mr Hamilton’s death had been caused by Mr Clarke’s assault earlier in the evening or was the inadvertent result of Mr Clarke’s clumsy attempts at resuscitation of the unconscious Mr Hamilton. It was undisputed that Mr Hamilton had underlying medical problems of osteoporosis and cirrhosis of the liver as a consequence of a long history of alcohol dependency.
Mr Hamilton had a number of broken ribs and other injuries – but which injuries were occasioned by the initial assault and which by the resuscitation attempts? Expert evidence was to be called by both sides concerning the length of time which appeared to have elapsed between Mr Hamilton suffering the broken ribs and his death and as to whether the initial assault led to injuries which were the cause of Mr Hamilton’s death.
The defence expert’s written report
A Professor Freemont, instructed by the defence, had provided a written report in which he said that: “The fractures to the lower left ribs could not, of themselves, have led directly to death and there is no evidence that they indirectly led to death as there is no report of significant damage to adjacent vital organs. There is therefore evidence of two fracturing episodes, one at or immediately around the time of death and the other that happened within 3 to 4 hours of death. The earlier injury is extremely unlikely of itself to have caused death. The second, because of the degree of osteoporosis, could have been caused by overenthusiastic CPR [resuscitation attempts]“.
The prosecution’s objection
The case came to trial and, on the final day of the trial, Professor Freemont was to be called by the defence – but the prosecution raised an objection. They submitted that Professor Freemont was an expert on bone fractures and, though he was perfectly entitled to express an opinion on the bone fractures and how long prior to death they had occurred, he did not have the necessary expertise to voice an opinion to the jury as to the cause of Mr Hamilton’s death. That, said the prosecution, was a matter outside his field of expertise.
Professor Freemont was questioned in the absence of the jury in a process known as voir dire. He had carried out many autopsies in cases of death by unnatural causes, including cases of sudden and violent death – for example as a result of a road accident or a suicide – but had never carried out a post-mortem in a case of suspected murder and, since he was not a ‘Home Office Pathologist’, it would not be appropriate for him to do so.
The judge’s ruling
In the light of the voir dire the judge ruled that Professor Freemont “is not an expert who is able to give evidence on the cause of death in this case, save and beyond that it might be immediately apparent from the particular ribs he examined in the course of his task on behalf the defence”.
As a result the jury remained unaware of Professor Freemont’s opinion that the earlier injuries were extremely unlikely to have been the cause of Mr Hamilton’s death.
Both defendants were convicted and appealed to the Court of Appeal.
The Court of Appeal’s comments
Both appeals were dismissed, but the court did have something to say about the conduct of both prosecution and defence in the original trial. They were concerned that the challenge to the expertise of the defence expert was only made immediately before he was due to give his evidence.
The Court of Appeal said: “if one side intended to challenge the expertise of an expert witness of the other side, then written notice, together with the reasons for the challenge, should have been given as soon as possible so that the other side could consider what it would do. Even if that were not done, it should have been obvious to the defence once it had seen the note of the [prosecution's] medical conference of 20 January 2011 that there was a strong possibility that the expertise of Professor Freemont would be challenged. Defence counsel should have taken the initiative immediately and asked the prosecution whether it was going to challenge the professor’s expertise”.
Conclusion
Expert witnesses are used in a wide range of Crown Court cases but it is unusual for the relevant expertise, experience or qualifications of an expert witness to be challenged in the criminal courts of England and Wales. (Applications to exclude expert evidence are more common in the Federal Courts of the United States following the US Supreme Court’s landmark opinion in Daubert v. Merrell Dow Pharmaceuticals Inc.)
There are lessons to be learned here for both prosecution and defence teams in future cases where such a challenge is anticipated.
David
(Note: This article refers to expert witness evidence in the criminal courts in England and Wales. There are a number of additional issues which could be relevant to expert evidence in particular cases which it is not possible to deal with in a relatively short article such as this. Appropriate professional advice should be sought in each individual case.)