Dear reader: please excuse the style of this article. I am dealing here with observations in law. I have chosen a legalese style so that any student of law stumbling upon this article may more easily perform a web search for authoritative legal sources. I have studied legalese out of a linguistic interest in its attempted logical use of language. I have studied the history of British law for its impact on the history of the English language. But nothing I say here should be relied on as a statement of law. I am not a lawyer!
We have moved on a great deal from the days of compurgation and ordeal. For some centuries, the common law has welcomed the contribution of the expert witness to the due process of law.
If matters arise in our law which concern other sciences or faculties we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation.Saunders J, Buckley v Rice-Thomas (1554) 1 Plowd 118, at 124
It should be obvious that the role of an expert witness is to inform the judge, the jury and both sides of the contest about the most up-to-date findings of science in the specific area where the knowledge possessed by the non-expert may be insufficient to the just disposition of the case.
The British courts have long accepted that an amateur who has made sufficient study of a matter and/or who has a long experience of making observations in the area is acceptable to the courts as an expert witness.
The mere fact that a person has formal qualifications in the area, or that he or she is acknowledged by his or her peers, or by the law itself to be an expert, is not sufficient reason for the court to regard the expert's opinion as inviolate or unarguably true, and the jury should be so directed.
In matters of the ordinary powers of human observation there is no reason why a jury should prefer the opinion of an expert to their own opinion where this is appropriate. The jury should be warned not to be overly impressed with an expert's qualifications. If there is even a hint of controversy in the area of expertise, or as to the expert's character, the jury has a right to be informed.
Munchhausen's Syndrome by Proxy, MSbP.
MSbP describes a syndrome wherein a caregiver, usually a parent, harms a child in order to gain personal attention. That is a sufficient description for this article, although there is much more to the syndrome. MSbP is controversial. The controversy arises from an expert's over-eagerness to demonstrate MsBP, leading to a complete failure to consider other possibilities. No expert is entitled to convert the common law precept of 'innocent until proven guilty' into 'guilty until proven innocent'.
"One sudden infant death is a tragedy, two is suspicious and three is murder, unless proven otherwise."Sir Roy Meadows.
There have been cases such as that of Beverly Allitt where the evidence is overwhelming. There have been cases where video surveillance has shown a caregiver harming a child. But equally, there have been far too many cases where experts have given unsupported evidence against persons accused of child harm, only for the conviction to be eventually quashed. The most recent relevant case in the news is that of the expert witness David Southall's appeal against being struck off by the general Medical Council.
It has been suggested of Sir Roy Meadows and David Southall that they are attention seekers. Can it be said, in a legal sense, that they must have known that their testimony in the relevant cases would cause harm to the people concerned? Are they, to a legal standard of proof, attention seekers? If both of these questions can be answered in the affirmative then there is a clear case for a claim that these two expert witnesses are themselves suffering from Munchausen's Syndrome by Proxy, q.e.d.
For an insight into how an ethical expert witness behaves, bearing in mind that nobody is perfect, I strongly recommend Forty Years of Murder, by Keith Simpson.