It is the first step towards clearly defined boundaries and limits that, in turn, help courts identify and assess reliability issues associated with proffered expert opinion evidence within the context of the criminal justice system.Īlthough these themes were discussed in the 2005 Report, they have gained prominence as a result of recent inquiries and court decisions. Understanding this principle will assist experts greatly as they interact with other players in the criminal justice system. The expert cannot become a partisan.” Footnote 283 As noted by Commissioner Goudge, “he role is a neutral one, at all stages of involvement, not just when testifying… must understand that their role as experts in the criminal justice system is to provide the police, the Crown, the defence, and the court with a reasonable and balanced opinion, and to remain independent in doing so. It is clear from these developments that the following premise bears repeating: regardless of who retains the expert, the expert witness’ role is not to take sides, but to provide an objective and balanced opinion. Charles Smith, Footnote 281 previously hailed as Ontario’s top pathologist in pediatric death cases, testified that he never received formal instruction on giving expert evidence he believed that his role was to act as an advocate for the Crown and to “make a case look good.” Footnote 282 Indeed, the testimony at the Inquiry revealed with stark clarity that the role of the expert may not be fully understood by justice system participants, especially the expert, Dr. Checks and balances are required to overcome this frailty and the danger of creating “battles of the experts.” The recommendations from the Inquiry into Pediatric Forensic Pathology highlight the need for all participants in the criminal justice system to exercise vigilance and caution in assessing expert opinion evidence to ensure that it meets the standards of excellence required to guard against wrongful convictions. The very reason that courts rely on expert witnesses – for their specialized knowledge – makes it difficult to challenge their expertise and opinions. We need to rethink our approach to expert witnesses and expert testimony. As trials become increasingly more complicated, expert witnesses often are called upon to assist triers of fact by offering expert opinions based on their acquired “specialized knowledge.” Unquestionably, this movement towards increasing reliance on expert witnesses parallels the more relaxed approach to the admission and acceptance of this type of evidence by all parties involved in the criminal justice system. It is clear that the expert witness has become a fixture in our criminal justice system.
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