Expert Witness
Expert Witnesses
A recent case I found to be very troubling. Thankfully, the judge made the right decision and refused to allow the evidence of an expert witness to be admitted to the jury.
In R. v. Calnen [2015] NSSC 330 the Crown sought to tender the opinion of an expert witness, a medical doctor, Dr. Marnie Woods, about the cause of death of the deceased. Let me say at this juncture I am troubled that the Crown would attempt to lead this type of evidence.
The case concerns a fall from a flight of stairs. The defence theory was that the fall caused the death of the deceased. The crown sought to tender expert evidence which went to “the cause and manner of death”.
Doctor’s Opinion
The doctor stated:
“instantaneous death after such a fall would be distinctly unusual given my experience and the reports described in the reviewed literature” but qualified her opinion “many variables and individual factors must be considered … it is not reasonable to describe one expected outcome … the ability to comment more specifically on this case is limited by the absence of a body [she did not examine the body]”.
If you dissect what the doctor is saying here, she is really saying nothing at all. Her evidence can be rewritten as follows:
falling from a flight of stairs usually doesn’t cause death but I can’t be certain that it didn’t in this case because I haven’t seen or examined the body.
The judge in this case found that the doctor’s evidence was too speculative to have merit. Rather, the judge was persuaded by another doctor’s opinion that the evidence sought to be tendered was “anecdotal” and that the cases Dr. Woods referenced were “unpublished”.
I am reminded of how important the scientific method is, and how in this case it was violated in many respects. The scientific method calls for a theory which can be tested. Results are then published so that they can be re-tested and scrutinized via peer review.
In this case the Crown doctor had a theory. She did not examine the body or review the medical history of the deceased to test her theory nor did she use published cases in support of her theory. The doctor’s opinion runs afoul of the scientific method.
Finally, in this case the judge also did not allow the expert evidence because it went to the ultimate issue of the case – murder v accident.