Experts for Hire: A Dangerous Practice Which Increases the Risk of Bias and Disadvantages the Accused

Elisabeth Giffen

Abstract


For as long as the use of party-retained experts has been a feature of the common law tradition, the practice has faced criticism. In criminal trials in Canada, most experts who testify are retained, paid for, and instructed by either Crown or Defence counsel. Despite the nature of the employment-like relationship in which the expert and the retaining party are engaged, the expert is expected to provide evidence that is fair, objective and non-partisan.

This divergence of interests is problematic in that it makes the expert susceptible to the development of partisan bias, even if only unconsciously. This is particularly dangerous in the criminal context because it could contribute to a miscarriage of justice. Additionally, reliance on party-retained experts disadvantages low-income accused persons due to the discrepancy in resources between Defence and the Crown. To address these problems, the author proposes a hybrid model of reform which incorporates features of the ‘hot tub’/concurrent, joint expert, and court-appointed expert models.


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