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Judges allow expert witnesses too much latitude, inquiry told Add to ...

Judges have done a poor job of preventing expert witnesses from testifying in areas where they lack expertise, a widely respected former judge told the Goudge Commission yesterday.

"I think that we get drawn into it, thinking: 'Oh, well, of course, she is a medical doctor, or a pathologist, or a pediatric pathologist - so, of course, we'll receive their opinion," said Patrick LeSage, former chief justice of the Superior Court of Ontario.

In testimony that had a distinctly confessional ring, Mr. LeSage chastised himself for rejecting only a half-dozen experts in his 29 years as a trial judge. Even when his instincts had militated against allowing a particular expert to testify, Mr. LeSage said that he was loath to toss out that person's testimony.

He told Criminal Lawyers' Association lawyer Jeff Manishen that he was the sort of judge who was "more like a sphinx than an activist," rejecting expert witnesses only when they plainly "didn't have a clue; when they had no basis on which to come to their conclusions."

Highway-accident reconstruction experts exemplify the type of expert witness who has to be assessed very carefully, Mr. LeSage said: "It's just somebody's theory."

As part of a probe into autopsy errors by pediatric pathologist Charles Smith that precipitated wrongful charges and convictions, Mr. Justice Stephen Goudge is focusing on the role of experts in the court system.

Mr. LeSage testified yesterday that, two years ago, while he was presiding over an inquiry into the wrongful conviction of a Manitoba man, James Driskell, he was struck by statements he heard from a panel of scientific experts.

"I must say, it came as somewhat a shock to me, having spent 40 years in the justice system, to hear some of the scientific experts speak of the uncertainty and lack of clarity in areas of science that I had always thought of as much more certain than they really are," Mr. LeSage said yesterday. "I felt very guilty that I had not better educated myself on these areas long before."

Mr. LeSage said that he believes expert witnesses are viewed with awe because Canadians are innately deferential to authority. He said that he used to avoid using the word "expert" in front of juries, because it could automatically invest the witnesses with an authority they didn't necessary warrant.

"Did I question their expertise sufficiently?" he said. "Did defence or Crown counsel question the expertise, the basis, the underpinnings for it, as much as we ought to have? In many cases, no, we didn't."

Ontario Court of Appeal Judge Marc Rosenberg - a renowned expert in the field of evidence - told the inquiry yesterday that, "we have seen some real tragedies ... with psychological evidence in child sexual-abuse cases. A lot of evidence got in that, in hindsight, looks pretty frail."

Judge Rosenberg said that in some fields, judges should not simply accept an expert's word that he cannot supply empirical evidence to back up his opinion. "The response we used to get - and maybe still get - is that, 'ethical considerations prevent us from doing the kind of experiments you want us to do: We can't just drop people off buildings to see what happens.' "

Judges are hungry for information about how to deal with the vexing question of expert testimony, Judge Rosenberg added.

U.S. law professor Erica Beecher-Monas said that a pathologist can safely testify about what sort of pediatric head injuries are usually not accidental. However, pathologists should not be allowed to give their opinion about how their information applies to the case being tried, she said.

"What's not happening is that the forensic pathologist is not explaining that there is an alternative explanation that would account for all these symptoms also," she said.

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