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The Expert Witness, Forensic
Science and the Criminal
Justice Systems of the UK
The Expert Witness, Forensic
Science and the Criminal
Justice Systems of the UK

Edited by
Lucina Hackman, Fiona Raitt and Sue Black
CRC Press
Taylor & Francis Group
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Boca Raton, FL 33487-2742

© 2019 by Taylor & Francis Group, LLC

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No claim to original U.S. Government works

Printed on acid-free paper

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Contents

Preface vii
Acknowledgements ix
Editors xi
Contributors xiii
Introduction xv

1 Ethics and the Role of the Expert Witness 1

TONY WARD

2 The Impact of Case Law and Inquiries on the

Role of the Expert Witness 15
TOM WELSH

3 Miscarriages of Justice and the Role of the

Expert Witness 29
LUCINA HACKMAN

4 Expert Evidence in Scotland in Criminal Trials:

A Defence Solicitor’s Perspective 47
EAMON P. H. KEANE

5 The Role of the Expert Witness in the Northern

Ireland Criminal Justice System 67
JONATHAN DOAK AND TIM JEBB

6 Responsibilities and Obligations of the

Expert Witness 81
DAME SUE BLACK AND NIAMH NIC DAÉID

7 Emerging Science in Court 97

FIONA RAITT

v
vi Contents

8 Statistics and the Expert Witness 111

DAVID LUCY AND LUCINA HACKMAN

9 The Expert Witness in the Inquisitorial

Justice System Compared with the Adversarial
Systems of the UK 127
VERENA MURSCHETZ

10 Forensic Science in U.S. Criminal Trials after

Melendez-Diaz 141
JESSICA SMITH

Index 157
Preface

The role of the expert witness and the opinion evidence that they present in
court has caused, and continues to cause, issues; experts often do not agree
and may hold widely differing opinions or may present their evidence in
ways which make it difficult for a jury to follow. More recently, the increase
in the use of DNA evidence to examine past cases has shown that experts can
be the cause of miscarriages of justice. It quickly becomes apparent that the
issues around the use of expert witnesses are global, but each criminal jus-
tice system has differences that anyone attending court in this role needs to
understand prior to giving evidence. Despite this, the literature which exists
around the role of the expert is surprisingly limited in scope.
The idea for this book came about from a series of conversations between
ourselves as we tried to find information in the literature about the role of
the expert witness in the courts of Scotland. As we looked around, we found
that information we needed was not readily available and so we decided to
address the gaps through this book. It was during the writing of this book that
Professor Raitt retired from her position as professor of evidence and social
justice at the Law School at Dundee University. During her time at Dundee,
she cast a close look at the role of expert scientific evidence in Scottish courts,
detailing the role that this has played in cases across the country.
Chapter 1 studies the ethical obligations of the expert witness, exploring
the ongoing discursive around the ethical obligations of the expert and how
these should be fulfilled within their role as the expert, taking into account
existing legislation. Within this narrative is an emphasis on the importance
of ethics in gaining the trust of those listening to the opinion of the expert
within the court, including the members of the jury.
Chapters 2 and 3 both look at the development of the role of the expert
witness in relation to case law, inquiries and miscarriages of justice. The law
is constantly developing and responding, and these chapters trace and dis-
cuss how these changes have impacted the modern role of the expert witness.
Much of the discussion that sits around the role of the expert witness
concentrates on the expert as prosecution witness. However, Chapter 4 takes
a look at the role of the expert as a defence witness within the Scottish legal
system. The chapter highlights some of the differences of the Scottish sys-
tem but also includes experiences that the author has gained from working
within this system. This leads to Chapter 5, which offers a similar discussion

vii
viii Preface

of the role of the expert witness within the legal system of Northern Ireland,
and where this differs from the jurisdictions of England, Wales and Scotland.
Chapter 6 outlines the responsibilities and obligations of the expert in
relation to present legislation, leading to Chapter 7, which looks at the dif-
ficult subject of expert evidence and emerging sciences. The way in which the
court and the expert deal with these new evidence types is important, and
each presents its own challenges, not least of which are the ways in which the
varying professional groups within the legal system wish to use this emerg-
ing science, and the stresses and pressures that this imposes on the system
and the expert witness themselves. Chapter 8 follows logically on from this
as it examines the relationship between expert evidence and statistics. The
way in which statistics is utilised and presented has come under increasing
scrutiny by the courts, and this chapter discusses the difficulties that exist for
both sides in this debate.
Finally, Chapters 9 and 10 add an international perspective. Many
experts will find themselves working across jurisdictions, so an understand-
ing of how this impacts their role within the court system is vital. Chapter 9
compares the role of the expert witness in inquisitorial systems with the role
of the expert in adversarial systems; and Chapter 10 rounds this off with
an examination of the way in which the U.S. Supreme Court’s decision in
Melendez-Diaz in 2009 impacted the role of the expert witness.
As with any book of this type, this required the work of a number of peo-
ple. The editors are grateful to all the contributors, but special mention should
go to Dr David Lucy, who contributed a chapter to this book but sadly lost
his battle against cancer in June 2018. David started his career in Edinburgh
before working for a number of years at the Joseph Bell Centre for Forensic
Statistics and Legal Reasoning. From there he moved to Lancaster University.
His publications and work on statistics for the analysis and understanding of
forensic evidence brought the subject of statistics within the understanding
of many students.

Dr Lucina Hackman
Prof Fiona Raitt
Prof Dame Sue Black
Acknowledgements

The editors would like to thank all of the contributors to this book for their
assistance in the production of this text. We are also grateful to the editorial
and production teams at the publishers, particularly to Mark Listewnik for
his patience and the time taken to keep us on the right path.

ix
Editors

Dr Lucina Hackman is currently a principal investigator in education and

training in forensic science at the Leverhulme Research Centre for Forensic
Science and the University of Dundee. Prior to this she was a senior lecturer
at the Centre for Anatomy and Human Identification, where she was respon-
sible for MSc courses. She is the co-editor of two books on human identifi-
cation and has authored book chapters in the same area. She is chair of the
Forensic Anthropology Steering Committee at the Royal Anthropological
Institute, and was lead author in writing the discipline Code of Practice. She
is a fellow of the Royal Anthropological Institute and the Royal Society of
Biology and a level 1 certified forensic anthropologist.

Prof Fiona Raitt, LLB, PhD, co-founded Wilson & Raitt, a Dundee-based
firm of solicitors, where she has worked as a solicitor for 13 years, often rep-
resenting survivors of domestic abuse.
Until her recent retirement, she was professor of evidence and social justice
at the University of Dundee, where she undertook research in the areas of
evidence law, domestic abuse, sexual violence and family law.
Her books include Laws of Evidence in Scotland and Evidence: Principles,
Policy and Practice (2008, revised edition in 2013) and, with Dr Suzanne
Zeedyk, The Implicit Relation of Psychology and Law: Women and Syndrome
Evidence (2002).

Prof Dame Sue Black is pro vice chancellor for engagement at Lancaster
University. Prior to this appointment she was director of the Leverhulme
Research Centre for Forensic Science and director of the Centre for Anatomy
and Human Identification, both at the University of Dundee. She is the
president of the Royal Anthropological Institute, patron of archaeology in
Scotland and the lifetime professor of anatomy at the Royal Scottish Academy.
She is the author of 15 textbooks in the fields of human anatomy and forensic
anthropology, and has given expert evidence in courts throughout the UK and
overseas. In 2001, she was awarded an Order of the British Empire (OBE) for
leading forensic anthropology in the British Forensic Team in Kosovo, and in
2016 she was awarded a DBE (Dame Commander) to recognise her leadership
in forensic science. She is a fellow of the Royal Society of Edinburgh, the Royal
Anthropological Institute, the Royal Society of Biology and the Royal College
of Physicians of Edinburgh; and is a level 1 certified forensic anthropologist.
xi
Contributors

Prof Jonathan Doak is professor of criminal justice and associate dean

for research at Nottingham Law School, Nottingham Trent University. His
research focuses on issues relating to the rights of victims, defendants and
witnesses within the criminal trial; and wider issues relating to criminal
procedure (particularly criminal evidence, cross-examination and restor-
ative justice) and transitional justice (particularly in relation to process and
reparation).

Tim Jebb, married with two children, was called to the bar of Northern
Ireland in 2012. He previously worked as a solicitor specialising in criminal
law. In his time at the bar, he has continued to practice in this area, and also
now accepts instructions in the field of immigration law and judicial review.

Eamon P. H. Keane is a Scottish solicitor and legal author with a special

interest in the law of evidence and the prosecution of sexual offences. He is
the co-editor of Raitt on Evidence: Principles, Policy and Practice. He is the
convenor of the Scottish Legal Action Group. He has practiced as a criminal
defence solicitor and currently works at the Scottish Criminal Cases Review
Commission.

Dr David Lucy worked at the University of Lancaster as a lecturer. He spe-

cialised in the application of statistical methods to the evaluation of forensic
evidence, about which he published widely.

Prof Verena Murschetz is a professor of law at the Criminal Law Department

at the University of Innsbruck in Austria. In 2015, she was appointed as the
chair of the Expert Commission 1 of the Austrian Ombudsman Board, act-
ing as the National Preventive Mechanism under the Optional Protocol to the
Convention against Torture (OPCAT) for a 6-year mandate. Prof Murschetz
has published extensively in the fields of criminal law and criminal proce-
dure, as well as European and international criminal law. Her publications
have received numerous awards, such as the Otto Seibert Wissenschaftspreis,
the Franz Gschnitzer Preis and the Preis des Akademischen Alpinen Vereins.
After completing her law studies at the University of Innsbruck, she obtained
an LLM from the University of California at Los Angeles and a PhD summa
cum laude as well as her habilitation from the University of Innsbruck.
xiii
xiv Contributors

Between 2003 and 2010, she regularly taught courses on international crimi-
nal law and European Union law at the Victoria University of Wellington
School of Law.

Prof Niamh Nic Daéid is a professor of forensic science and director of the
Leverhulme Research Centre for Forensic Science, a 10-year, £10-million
research centre focusing on positively disrupting the forensic science eco-
system. She undertakes forensic casework mainly in fire investigation and
drug analysis, and has provided evidence to the criminal courts and public
inquiry as an expert witness.

Prof Jessica Smith, W. R. Kenan, Jr. distinguished professor of public law and
government, is a faculty member at the School of Government, University of
North Carolina at Chapel Hill. Prof Smith teaches judges and other public
officials about criminal law and evidence, and works on projects to create
a fairer and more effective criminal justice system. She received the Friend
of the Court Award from the North Carolina Supreme Court for her role in
a 2017 law that reformed the state’s juvenile justice system; she currently is
working on projects regarding overcriminalization and bail reform.

Prof Tony Ward is professor of law at Northumbria University, Newcastle.

He has published several articles and book chapters on forensic science evi-
dence, including a contribution to Forensic Science Evidence and Expert
Witness Testimony: Reliability through Reform? edited by Paul Roberts and
Michael Stockdale (Edward Elgar, 2018). Other recent publications include
State Crime and Civil Activism with Penny Green (Routledge, 2018).

Sheriff Tom Welsh QC was appointed sheriff in 2000. He was director of

the Judicial Institute for Scotland for 5 years and presently sits in Edinburgh
Sheriff Court.
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