Expertise is one of several ideological aspects of current Canadian criminal law. It is represented by a group in the legal community that is comprised scientists. Members of this group are increasingly called upon as expert witnesses by the Crown and the accused in criminal trials. They are referred to as experts due to the trust given by the legal system on their technical knowledge to gauge evidence (The Path of Justice, 2011). This is especially true in situations where the ability to review presented evidence is outside the field of knowledge of Judges and Jury members.
Expertise operates as ideology as the increasing weight given to the professional opinions of this class of witnesses, affects criminal trials in Canada. Having select individuals determine the eligibility and strength of certain evidence, helps simplify the understanding of evidence by the court and society at large. In that sense, relegating this responsibility to doctors and other professionals with applicable specialized knowledge, helps society function. However, the ideology opens up the possibility for unequal access to justice, depending on the socioeconomic class of the accused. It reproduces society’s acceptance of third parties affecting trial outcomes and creates legitimate methods for the Crown and the accused to respectively gain convictions and acquittals.
As an ideology, expertise reproduces conditions that allow it to thrive, as greater use of expert testimony in the eyes of the public, serves to legitimize the role of scientists in determining the innocence or guilt of the accused. The Public Prosecution Service of Canada (PPSC) has published key concerns regarding the criminal justice system’s reliance on opinions by specialized knowledge holders – the reliance on unreliable scientific data and the possibility of tainted expert testimony (The Path of Justice, 2011). Expert witness testimony may depend on scientific studies that turn out to be unreliable, but remain unchallenged due to Crown or the defense counsel lacking specialized knowledge to make counterarguments. Also, different individuals from the same field of practice or knowledge may rely on different scientific studies to form their opinions. This presents the issue of opposing parties seeking out expert witnesses based on their existing views and perhaps bias on certain issues, rather than positive reputation (professionalism and objectivity) within their respective fields.
This expands into the continual use of specific experts and based on their testimony history and outcomes of previous trials. One example is Dr. Charles Smith, formerly Ontario’s top pathologist and popular expert witness in cases of pediatric death (Inquiry into Pediatric Forensic Pathology, 2008). In 2008, Dr. Smith commented that he was not trained in providing expert testimony and had believed that he was an advocate for the Crown. To be clear, expert witnesses are supposed to provide a reasonable and balanced opinion and remain independent of the opposing parties (The Path of Justice, 2011). This is troubling because while courts regard their opinions highly, experts themselves may not understand their role within a trial.
The criminal justice system’s reliance on specialized knowledge holders has several consequences. Firstly, expert witness testimony can supersede the decision-making process of Judges in cases where technical details are paramount. Secondly, it can be misused by the Crown and the accused. These authorities of specialized knowledge can be brought in – as if they were mercenaries to be used in the legal arena – based on their ‘past performance’ in precedent cases to help secure convictions or acquittals. Thirdly, it can empower partisan experts to steer cases based on their personal preference and ignorant experts to provide unreliable information that leads to a false conviction or acquittal. Lastly, it opens up a possibility where access to justice depends on the financial resources of opposing parties.
Opposing parties in court may succeed or fail to gain convictions or acquittals, based on their ability to bring forward expert witnesses. As expert witnesses are often paid per hour for their services, those without the funds to employ them, are placed at an immediate disadvantage (Expert Pages, 2014). This is where structural Marxism applies to the ideology of expertise. The state indirectly reproduces capitalist class relations by allowing a pay-model to operate in the criminal justice system, under which people with the resources to hire witnesses with supportive testimony (capitalists), can influence the outcome of the trial in their favor. Of course, it is not purely an economic issue – capitalists also tend to have greater social networks (also networks with more highly specialized professionals), from which they can find the best suited experts to help them win in court.
Public Prosecution Service of Canada (PPSC). (2011). The Path to Justice: Preventing Wrongful Convictions: Forensic Evidence and Expert Testimony. Retrieved from: http://www.ppsc-sppc.gc.ca/eng/pub/ptj-spj/ch9.html
Ontario’s Ministry of the Attorney General. (2008). Inquiry into Pediatric Forensic Pathology. Retrieved from http://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/report/index.html
Expert Pages. (2014). General Information About Expert Witnesses and Consultants. Retrieved from http://expertpages.com/news/new1.htm
Larsen, M. (2014). Law, Society and Ideology: The Contributions of Marx. Retrieved from http://my.kwantlen.ca/cp/grouptools/fileshare/12947/153009/CRIM%203305_6_%20Law%20Society%20and%20Ideology_Marx.pdf