Clive Stafford Smith is a British solicitor who specialises civil rights and working against the death penalty in the United States. He has worked to overturn death sentences and helped to found the Louisiana Capital Assistance Centre in New Orleans. He was a founding board member of the Gulf Region Advocacy Centre based in Houston. He has represented more than 100 of the detainees held as enemy combatants since 2002 at the US Guantanamo Bay detention camp and is the Legal Director of the UK branch of Reprieve. Expert witnesses have played a vital part in many to the matters he has been involved in and their opinions matter.
He spoke at our conference in November and achieved the distinction of being the first male speaker not to wear a suit (he denied having one) and the first to use the f word. He spoke passionately and engagingly and suggested to the 450 experts present that the case of the paediatric neuropathologist Dr Waney Squier raised serious issues that affected all experts.
In March 2016, Dr Squier was struck off the GMC register for her conduct as an expert witness in shaken baby cases. The tribunal found that she “deliberately and dishonestly misled the courts by putting forward theories insufficiently founded upon the evidence, by giving evidence outside your own field of expertise, and by misquoting research and literature so that it appeared to support your opinion when it did not.” The Court of Appeal overturned
the decision on 3 November 2016, just a day before the conference, and ruled that her views were not misleading, but she had failed to work “within the limits of her competence, to be objective and unbiased and pay due regard to the views of other experts”. Mr Justice Mitting said she should be allowed to return to her work her work as a doctor but would not be allowed to act as an expert witness for 3 years.
Clive opened his address to discuss forensic hair analysis. He has questioned the validity of this field for many years and the FBI has now agreed that the science is not sound and is revisiting the cases affected. But would this have happened if the FBI and the courts had only listened to the Forensic Hair Analysts? Clive told the experts present:
‘There is no-one in forensic hair analysis who looks down a microscope all day long and says to him or herself “my life is pointless, what I am doing is total rubbish”… Everyone who is a technician in forensic hair analysis believes in it, obviously, and they were trained to believe in it… When you want to challenge it in a courtroom you can’t find an expert who is an expert in how forensic science means nothing.’
In America, Clive has testified twice about forensic hair analysis: with a scientific background he is allowed to challenge forensic hair analysis even though he has never analysed hair himself. In Britain he would have been prevented from giving evidence outside his area of expertise.
Many experts would disagree: miscarriages of justice can also occur when an expert strays from their area of expertise. Professor Sir Roy Meadow, a highly respected paediatrician, strayed into interpreting statistics when he told a jury that that the chance of two cases of cot death were one in 73 million in a family like Sally Clark’s. He made a basic and obvious error because he had no training in statistics.
But do experts know when to say “no”? Medical experts especially, deal with overlapping and unclear boundaries every day. Few legal cases can afford an expert in every relevant specialism
‘You are in real jeopardy when going into a British courtroom,’ Clive told the experts. Although critical of the American judicial system, he argued that in one respect it is much better than the British system. In America expert witnesses may give their professional opinion as long as ‘the expert – the expertise – is valid’ even if is a minority view; in Britain an expert must ‘respect the opinion of these other folk and explain what it is’.
How can experts question the mainstream view if they are expected to show respect for it? He argued that is bad for the legal system and bad for justice if experts cannot challenge a majority view in court.
Again, not everyone will agree with Stafford Smith. If you don’t acknowledge the range of views in your field, can you say that you are fulfilling your role as an independent and objective educator or the court? Many experts have found ways of acknowledging and respecting the other views whilst challenging them.
But other expert witnesses in controversial areas will wonder if they are doing enough to explain the range of views and give a balanced view of the relevant research. At a time when expert witness budgets are being squeezed and experts are being asked to keep their reports short, many with sympathise with Dr Squier’s argument that her report would be far too long if she had included all of the research.
During his presentation, Clive conducted a quick poll. He asked experts what level of certainty was meant by “beyond reasonable doubt”. The median response was a 95% level of certainty, but the range of responses was very wide.
This raises the possibility that we mean very different things when we say “I’m sure”. When you give an opinion to the court, how sure are you that your opinion is correct? In your professional career, how certain do you have to be to make a decision or diagnosis? If that is different from the level of certainly the court requires to make a judgement, do you state that?
Clive was reassured that the audience’s definition of ‘beyond reasonable doubt’ was higher than the Cambridge Institute of Criminology, who state “It is generally agreed that BRD should be interpreted as a .91 probability”. Too many innocent people are being imprisoned because of this definition of ‘beyond reasonable doubt’, he told the audience.
Clive has written extensively in support of Dr Squier. This included a piece in the Guardian, claiming that the GMC’s case against her was ‘something akin to a re-enactment of the trial of Galileo, precisely four centuries after the original’.
Clive warned that the Dr Squier case has eliminated shaken baby critics from the courtroom. In his experience many doctors are critical of shaken baby syndrome but none are now willing to say so in a British courtroom.
Sweden is holding a review of shaken baby syndrome; the Los Angeles District Attorney has instituted a process where their number one question of wrongful convictions is shaken baby syndrome. Clive Stafford Smith believes that shaken baby syndrome is unsound.
When orthodoxies are not questioned and when critics are not represented then wrongful convictions will occur, he warned. Expert witnesses play an important role in court. Clive’s presentation showed that there is still disagreement about what that role should be.
Mark Solon
21 December 2016
Mark Solon | Chairman Wilmington Legal
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