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34 Queen's L.J. 565 (2008-2009)
Unplugging Jukebox Testimony in an Adversarial System: Strategies for Changing the Tune on Partial Experts

handle is hein.journals/queen34 and id is 575 raw text is: Unplugging Jukebox Testimony in an Adversarial System: Strategies for Changing the Tune on Partial Experts David M. Paciocco* In our adversarial legal system, parties select, pay for, prepare and call their own expert witnesses. This inevitably leads some experts to favour their clients, rather than serving as impartial, objective advisors to the tribunal. The author identifies several reasons for this. First, some experts lack independence because they share an interest with the party who called them. Second, and more commonly, many expert witnesses succumb to adversarial bias. Adversarial bias includes selection bias, which is a consequence of permitting adversaries to choose experts according to who will serve the needs of their case, and association bias, which is the natural tendency of experts to favour the party who called them. The effects of association bias range from dishonest modifications of opinions to conformation bias, the tendency of experts to search for evidence supporting the party who called them. Third, experts may be biased because of their own professional interests in supporting the theories or techniques they are using. Finally, noble cause distortion can lead experts (consciously or unconsciously) to alter their opinions in order to further what they perceive to be a worthy cause. The author shows that these types of partiality can cause mistaken outcomes, and suggests ways to minimize the distorting effect that expert bias can have. First, he argues that the Mohan test - which governs the admissibility of expert evidence - does not address bias directly enough, and urges courts to recognize that expert witnesses have a special duty to provide objective and unbiased opinions. He cites the Ikarian Reefer principles as an expression of this duty in Canadian jurisprudence, but suggests that they need to be formalized. To this end, he advocates that courts follow the lead of other jurisdictions and adopt expert witness codes of conduct. These would reinforce the special duty that experts owe to tribunals to provide impartial advice, and would assist in focusing attention on partiality when weighing expert evidence. In those rare cases where experts are incapable of fulfilling this duty, they should not be qualified as expert, and their testimony should be disallowed. Finally, the author argues that opposing counsel play the most important role in addressing expert witness partiality. He suggests that an understanding of the causes of bias will be helpful in exposing partial expert evidence and offers specific suggestions to litigators for addressing questions ofpartiality. * Professor, Common Law Section, Faculty of Law, University of Ottawa. D. Paciocco

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