Undue Deference to Experts Syndrome?

Citation

Sutherland EE (2005) Undue Deference to Experts Syndrome?. 12th International Conference of the International Society of Family Law, Salt Lake City, Utah, USA, 19.07.2005-23.07.2005. http://www.law2.byu.edu/isfl/saltlakeconference/papers/isflpdfs/Sutherland.pdf

Abstract
Expert witnesses fulfill a crucial role in the court system by opening up vast bodies of knowledge to lawyers, judges and juries who do not have the professional training to make that information readily accessible otherwise. The expert's contribution can be particular valuable when courts are addressing the rapidly developing body of medical knowledge, in general, and that relating to "syndromes", in particular. However, being the elucidator of knowledge to the ignorant puts the expert in an incredibly a powerful position and the danger is that courts will show undue deference to experts when the expert is expressing nothing more than his or her opinion. This article has its genesis in the coincidental occurrence of two recent examples, in the United Kingdom, where expert witnesses advanced their own particular theories - theories that were later shown to be either unfounded or inapplicable in the particular cases before the courts. In the first example, the evidence of Sir Roy Meadow, an English expert on Munchausen syndrome by proxy (MSBP), resulted in a number of women being convicted of killing their children and imprisoned. Eventually, it became apparent that his evidence was unsound, a number of the convictions were quashed, and the women were freed. However, prior to these challenges, much the same evidence had resulted in numerous children being removed from their parents' care and sometimes adopted into new families. In the second example, Dr. Colin Paterson, a Scottish doctor, "identified" a condition, known as temporary brittle bone disease (TBBD), and provided an alternative explanation of certain injuries to children, displacing the suspicion that the children had been abused. He featured as an expert witness for accused parents, in criminal cases, and in child protection litigation. While both his research and his findings were subsequently discredited, it is not entirely clear how many children may have been returned to their parents as a result of his evidence. The juxtaposing of these examples, resulting in both over-inclusion and under-inclusion, in terms of prosecution and child protection, provides the opportunity to examine how expert evidence is admitted into court proceedings in the UK; to ask whether the US Daubert test would provide a better safeguard; to explore what more might be done to avoid such debacles in the future; and to speculate that there may be another syndrome, Undue Deference to Experts Syndrome, at work in the legal system.

People

Professor Elaine Sutherland

Emeritus Professor, Law