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Ethical Considerations for Hiring Expert Witnesses

Ethics often come into play when hiring and using expert witnesses for both criminal and civil cases because the expert witness is someone that can help, support or even remove confusion with evidence and various processes. There are certain ethical dilemmas and problems that may arise with professional hires and even in the cases themselves.

The Ethics of an Expert Witness

An expert witness that must provide testimony for a trial should do so because of specialized knowledge or specific connection to a subject area. Even without direct attendance to the crime or incident, this professional can testify about something to increase the knowledge and understanding of the truth. Because of these issues, the expert witness may need to provide details that contradict the lawyer’s argument or that may counter the known facts in the case. It is up to the professional to sometimes recreate an accident for clarity. Some of the outcomes of processes are not what the judge or jury wants to hear.

Unbiased Testimony

When the expert witness must testify about subject material or explain the field of study to the courtroom, he or she can usually do so without any emotional attachment. However,
the opinions that this professional provides to the courtroom must remain unbiased. The expert cannot sway the judge or jury in one way because he or she feels it necessary or through belief in the innocence of the defendant. The professional must base an opinion on facts and evidence that exists in the case. Once the expert has a bias in the proceedings, he or she may become disqualified.

The Contradiction in Expert Witness Hires

There exists one contradiction that could become an ethical problem in where the expert witness is to remain impartial and tell the whole truth when he or she has the details but gets paid by the one side of the legal argument. The professional should not tell only partial truths about the case. There are additional conflicts that exist in these relationships when the goal of the lawyer and that of the expert witness may not coincide. The lawyer will try to sway the judge or jury. The opinions given by the professional expert may not have these same characteristics.

Providing Opinions

The dilemma that the expert witness may have when confronted with these ethical considerations involve telling the courtroom either information about the topic to attempt to explain certain issues or to tell the courtroom what the lawyer wants him or her to about the subject matter. Advocating for the lawyer can occur in an impartial way by presenting the researched information fairly and without distorting or misrepresenting the truth the evidence provides. By accomplishing this goal, the expert can maintain reliability and relevance and work for the lawyer if he or she can remain unbiased.

The Code of Ethics on Expert Witnesses

There are various guidelines that lawyers must adhere to when hiring expert witnesses that will govern when and how the professional enters the case. This often depends on the case proceeding through civil or criminal courts. Other experts must work with the evidence exclusively while some may work closely with the client such as a child affected by abuse, a family proceeding through psychological problems and a person with a mental condition. The expert must work within certain parameters, but the lawyer must also abide by the American Bar Association Model Code of Professional Responsibility.

Convinced Testimony

Per the Code that lawyers must adhere to, it is a violation to convince an expert witness to testify about subject material outside his or her field of study. The expert cannot accept financial incentives to testify invalidly or present findings that run counter to what he or she discovers during the processes of the case. Convincing the expert witness to provide false testimony or opinions that are not his or her own is another violation of the lawyer’s Code and can lead to serious penalties. These professionals owe no loyalty to the lawyers that hire them because they must remain unbiased and impartial with the evidence and opinions regarding the subject materials.

The Expert’s Considerations

The expert must consider all he or she knows regarding ethics and apply them to each case individually. This may require exposing material that is counter to the argument of the lawyer that hired him or her. Other situations may call for a complete agreement to what the lawyer presents in the courtroom. The professional must ensure he or she adheres to ethical considerations in these situations.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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