Commentary on ‘The Julian Assange case and its implications for expert witness evidence’ – Damned if you do ………

Introduction

When an American citizen, a Hollywood superstar, stood trial in the Central Criminal Court charged with the murder of his ex-wife, who was decapitated by a guillotine in a play in which they were both acting in a Kensal Green cemetery chapel, counsel's instructing solicitor was a partner in a New York law firm. Even before the trial starts at the Old Bailey and the court visits the cemetery chapel, she comments, ‘If this were New York I’d have ….’ Not far into the trial, the judge has to intervene sternly and ask defence counsel to tell his instructing solicitor that she is not in a New York courtroom. When defence counsel begins cross-examination of the first prosecution witness, it occurs to him that his instructing solicitor, being a US trial lawyer, was far more likely to side with one of his more aggressive instructing solicitors, who had once passed forward a thoroughly unhelpful note in the middle of the cross-examination, saying simply: Now go for the jugular!!!

This case, which is fictional, and the subject of A Trial in Three Acts by Guy Morpuss KC, ¹ came immediately to mind when I read Professor Kopelman's Viewpoint. The Assange case does indeed raise a number of important issues regarding the role of expert witnesses and I will comment briefly on some of these. First, however, it is important to realise that this was a highly unusual case, involving, as Professor Kopelman says, a set of circumstances that are unlikely ever to be repeated, involving a number of interacting factors, and, although, it was not determinative of the law, but nevertheless potentially influential on expert witness practice, it is worth bearing in mind the statement of Oliver Wendell Jones Jr, Associate Justice of the US Supreme Court, in Northern Securities Co v United States (1903) ² 193 U.S. 197, ‘Great cases like hard cases make bad law’. It is not necessary to set out all the reasons why this was a truly exceptional and great case.

Big stakes

For the experts it was an exceptional case because one party was the government of what is widely regarded as the most powerful nation in the world, and, albeit not so much exceptional as uncommon for most experts, it was also a case involving very high stakes. It is understandable that the US Government should have invested heavily in this case. Experts are warned that the higher the stakes, which usually means damages measured in millions rather than thousands, and still in some countries life or death, the greater the efforts that will be made in cross-examination to undermine, or even have ruled inadmissible, their evidence.

There are potentially two stages to cross-examination. The first stage is undermining the expert's credibility. It comes first because, if achieved, counsel does not have to worry about their more difficult task which is to undermine the expert's opinion concerning matters about which the expert has the advantage, usually but not always, of knowing more than counsel. Although counsel for the US was a King's Counsel, he was instructed by US lawyers, and this probably explains not only what Professor Kopelman found to be aggressive cross-examination but also his unique experience of being given a series of tests. I heard about one of these tests forty years ago and was tempted to memorise the chemical formula for chlorpromazine in case I was asked but, as it happens, I never was asked.

Where the duty lies

The issue in this case for Professor Kopelman was his decision, following discussion with an instructing lawyer, not to name Mr Assange's partner and identify her children in his first report. As I stated in my report to the court, he was going to be damned if he did and damned if he didn’t. Although I have said that, as it is the duty of a doctor ‘to aid the execution of public justice’, ³ this gives justice a pre-eminent position for medical experts among the four basic principles of medical ethics (respect for autonomy, beneficence, non-maleficence and justice), ⁴ this does not mean that Professor Kopelman's duty to the court could ride rough-shod over his duty of non-maleficence. To adapt the late Professor Nigel Eastman's analogy about mapping medical concepts onto legal concepts, the duties of a doctor do not map exactly onto the duties of an expert witness. As this was for Professor Kopelman a unique situation, it again illustrates the exceptional nature of this case as well as this being a challenge for which he was not as prepared as he knows, albeit with hindsight, that he might have been. Although it is clear that experts and lawyers would benefit from discussing such conflicts of duties, they arise so rarely that, if there are discussions, as Professor Kopelman has now initiated, they are more likely to take place after rather than before the event.

As it happens, the Criminal Procedure Rules, r. 19.9 does, and did, make provision for an expert's omission of information which the court might decide it would be in the public interest to withhold. Given that a few months later a court refused a request for Ms Moris's anonymity, it might have been that, even if Professor Kopelman had utilised r 19.9, the court would have decided that there was no public interest in withholding her identity but responsibility for identifying her would then have rested with the court. As it happens, and as I now know, r.19.9 had been made in April 2019. Professor Kopelman prepared his report in December 2019. In my report I said that I was not sure when it was introduced. I was fairly certain that it was not in existence when I finalised the draft of the second edition of my book ⁴ in autumn 2018. I did not think that I was aware of its existence in 2019. I thought I saw it for the first time in one of the 2020 supplements to Blackstone's Criminal Practice. Changes to procedural rules affecting experts are not communicated to them directly. Most experts depend on news items published by expert witness bodies. If Professor Kopelman is to be criticised, as implicitly he has been, for not utilising r. 19.9, then it seems to me that, because he discussed his dilemma with his instructing solicitors, they should not escape criticism. But if they did not know about a rule made eight months previously, the same questions arise as to how solicitors and barristers become aware of changes to the procedural rules.

Treading a lonely furrow

There is the related issue of the isolation in which experts work when preparing reports. As a result of Pinkus v Direct Line Group [2018] 1 WLUK 3 ⁵ and R v Pabon [2018] EWCA Crim 420 ⁶ experts are wary about discussing cases with colleagues before preparing their reports. But even though I do not think that there was any reason why Professor Kopelman should not have discussed his dilemma with a colleague, particularly as it was about procedure rather than his analysis of the case or his opinion, would it have been safe to do so having regard to surveillance risks and would a colleague have been any better informed as to the amendment to the Criminal Procedure Rules?

If I got myself an impartial witness …

The exchange which took place concerning the fact that on five or six occasions counsel for the US had sought to instruct Professor Kopelman in extradition proceedings after a particular case in which he had been his instructing counsel led to laughter from the District Judge prompting counsel for the US to suggest that Professor Kopelman was more of an advocate than a psychiatrist.

But the District Judge went on to find Professor Kopelman to be an impartial and reliable witness. Although the High Court said that there were substantial reasons for her to question the impartiality and reliability of his opinion, it is to be noted that the High Court did not find that he had not been impartial, only that it would have expected a rather fuller analysis than the District Judge gave of her reasons for finding him impartial.

The quotation from the renowned US trial lawyer Melvin Belli comes to mind, ‘If I got myself an impartial witness, I’d think I was wasting my money’. ⁷ But this is the UK, not the US.

Fairness to the expert

Clearly it is a judicial decision whether a higher court should re-run determination of evidential disputes but, having been given the opportunity to do so, it is unsurprising that, probably because there was deemed little prospect of undermining the opinions of the defence experts, which the district judge had accepted, and so cogently explained why, counsel for the US should have sought seemingly to impugn Professor Kopelman's character and integrity and call into question his competence. I find it surprising that it was allowed. In Kennedy v Cordia (Services) LLP [2016] UKSC 6, ⁸ the Supreme Court confirmed that the correct approach to challenging evidence of any kind is to be found in Phipson on Evidence ⁹ :

In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point […] This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence (author's italics for emphasis).

But it was not just that Professor Kopelman was denied the right to respond to the submissions made by counsel for the US. He was seriously criticised by the court itself which said that ‘we cannot agree with the judge's view that Professor Kopelman did not fail in his professional duty’. ¹² The Family Subcommittee of Her Majesty's Circuit Judges in its response to the Family Justice Council's consultation on Medical Experts in the Family Court ¹³ agreed that:

[I]t is appropriate to criticise an expert only when they have plainly failed to comply with their duties to the court or their own professional ethical duties […] They agreed that it is appropriate to give an expert the opportunity to comment on a judgment which proposes to criticise them in respect of a failure to abide by their duties to the court or their professional duties. Given that they are usually named in a judgment and that the judgment may well be published, they think it is only fair that they are given this opportunity.

“Those bloody books”

In the course of his evidence Professor Kopelman had referred to the International Classification of Diseases (ICD) and the Diagnostic and Statistical Manual (DSM) of the American Psychiatric Association as ‘those bloody books’. I find this unsurprising as their misuse or abuse is widespread (Rix, in press (a)). ¹⁴ Perhaps wisely, the psychiatrists instructed by the US Government had not cited ICD. In legal proceedings reliance on ICD and DSM seem far more likely to be a hindrance than a help (Rix, in press (b)). ¹⁵ They are easily weaponised by lawyers as this case indicates. Professor Kopelman was criticised by counsel for the US for his inability to recall relevant ICD diagnostic criteria but the District Judge did not accept this, saying, ‘his evidence to the court was not a test of his memory or his ability to recollect information that could easily be found in a book’. ¹⁶ Professor Kopelman had already referred to guidelines on the use of DSM. His evidence also complied with similar ICD guidance: ‘It is equally important to note that diagnostic classification is only a part of patient assessment’.^17,a His evidence was based on ‘a thorough clinical history and mental state assessment, corroborated […] by appropriate clinical rating scales, psychometric and performance validity tests, detailed and unbiased summaries from the Inmate Medical Records, informant reports, and spelled-out diagnostic criteria’. It was not just ‘diagnostic criteria’ on which he relied.

Conclusions and recommendations

Three times in his Viewpoint, Professor Kopelman refers to hindsight. Yes, as they say, it is marvellous, but it only is only hindsight. The following conclusions and recommendations are drawn from the case but I neither make nor imply criticism of Professor Kopelman. For example, he made clear in his evidence the limitations of DSM and ICD; he belongs to an expert witness organisation; he belongs to a peer group at Forensic Psychiatry Chambers and from which he was able to obtain support; he has himself contributed to the Medico-Legal Journal which is the Medico-Legal Society of London's publication.