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When Experts Become Advocates: The Case of Dr. Charles Smith

It almost goes without saying that an expert witness has to be impartial. However, it is not always easy to keep one's impartiality in real-life courtroom scenarios, where an expert may feel under pressure to present the case for one side. Or, an expert may feel he or she needs to be an advocate for a certain cause, representing an opinion of a certain hospital department or a heart-felt social education mission rather than professional standards.

A rare glimpse into the pressures experts are exposed to - and the terrible things that can happen when experts allow those pressures to influence them - was recently given in a public inquiry into forensic pathology practices in the province of Ontario, Canada. The inquiry has recently heard the closing arguments. The main focus, widely reported in Canadian press, were the practices of top Canadian pediatric forensic pathologist, Dr. Charles Smith. During his remarkably candid testimony, the disgraced Dr. Smith provided a checklist of the reasons he "fell victim to [his] tendency to become dogmatic, adversarial, too defensive, and to speak in black and white terms" - with disastrous results.

"Dr Charles Smith was once considered the epitome of expertise when it came to pediatric forensic pathology," the Canadian National Medical Review of Medicine wrote in an article titled "Canadian pathology mired in crisis" published in its April 2008 issue. "If a child died under suspicious circumstances in Ontario, all eyes turned to Dr Smith. If Dr Smith served as an expert witness in a homicide case, people listened. But that trust was misplaced. Dr Smith is now at the center of a public inquiry into the entire field of pediatric forensic pathology in the province. Many child murder convictions that Dr. Smith helped resolve have been thrown into question and the provincial Chief Coroner's office is now suggesting a total of 142 cases be reviewed."

Some convictions have already been overturned after Smith's testimony was reviewed. Cases reported in the press included one where a man spent twelve years in jail after being convicted of raping and killing his niece. He was released when it became clear that Smith's evidence was unreliable. Several mothers spent years in prison before the cases against them fell apart. In some cases, children were taken from their families. A case that grabbed a lot of attention was one in which Smith failed to recognize the distinctive marks left by dog's teeth and described them as scissors stab wounds.

On the witness stand in January this year, Smith said that when he first began testifying at criminal trials in the 1980s, he was "profoundly ignorant" of the role of expert witnesses in the criminal justice system and believed his role was to support the prosecution. Only years later did he realize his role as an expert witness was an impartial one.

"I believe I was too defensive or dogmatic or adversarial, and I was certainly too concrete. I don't believe that I clearly communicated my own uncertainty, but rather, I -- I think communicated the certainty of others," said Dr. Smith, referring to his testimony in the case of the dog bites.

When asked by the inquiry's Judge Stephen Goudge, why he behaved in that way, Smith candidly replied "Part of it was before going into court, the Crown attorney had indicated to me that the defense counsel wanted to make a big issue of this. And I had expected Dr. Wood to testify at the preliminary hearing and I was quite surprised to learn he didn't, and Mr. McKenna said, We want you to give that opinion."

Only much later, after giving his testimony, did Dr. Smith find out that his colleagues had differing opinions, and changed his own opinion. "And so I came to realize that I was, essentially, the only person who -- who was of that opinion. And while I remained perplexed in explaining some of the injuries, and especially the thoracic inlet injury, I realized I was the only person who had seen that. And I didn't feel that I had the -- the expertise or the confidence to stand up and give that opinion in light of the fact that other people -- defense experts, who had much, much more experience in the area - were strongly of the opinion that -- that they were explicable on the basis of a dog attack. "

The following is taken from a transcript from the Canadian inquiry (full version found at the public inquiry' site: http://mail.tscript.com/trans/pfp/jan_28_08/index.htm).

MS. LINDA ROTHSTEIN: There were a number of occasions this morning, Dr. Smith, when you described how you -- I think I'm quoting you fairly: "Fell victim to my tendency to become dogmatic, adversarial, too defensive, speak in black and white terms." Is that a fair encapsulation of what you told Ms. Langford this morning, sir?

DR. CHARLES SMITH: Those -- those are words that I believe I used, yes, yeah.

MS. LINDA ROTHSTEIN: What led to that unfortunate dogmatism, Dr. Smith?

(BRIEF PAUSE)

DR. CHARLES SMITH: I -- I think that there may be three (3) things here. As I would ponder it, you know, in the days ahead, it could be that I could add to the list.

First of all, I think there is a general tendency when experts are questioned, they -- they want to show their expertise and to show their all- encompassing approach so they tend to -- to -- in the first instance, seek to reaffirm what their opinion was, perhaps, rather than stand back and -- and think anew on the matter.
And so that -- that would be, I think, the first one and I -- I believe that I'm guilty of that, and acknowledge that as well. And that's -- and that occurs also in -- in rounds and other discussions. Someone says, I think you're wrong and then the first reaction is to say, well no, I think I'm right because of this reason.

I think the second is that when challenged in the Court environment, which is a little bit different than a collegial environment where - where one is more comfortable in front of colleagues admitting inadequacies because your colleagues have expertise that -- that you don't. In the Court environment, there isn't that -- that more comfortable environment of trying to work through a problem. It really is much more adversarial which is -- which is foreign to the way physicians work. And so I -- I think that my -- that my reaction there was -- was again to cause me to become more fixed in my opinion. And there was a third one and I -- and if you'll give me a moment, I'll try and remember that.

(BRIEF PAUSE)

DR. CHARLES SMITH: The third one -- the third one I believe may have been a factor even in one (1) or more of these cases. In the very beginning when I went to court in the -- on the few occasions in the 1980s, I -- I honestly believed it was my role to support the Crown attorney. I was there to make a case look good.

That's being very blunt but that was the way I felt and I know when I talked with some of my other colleagues especially those who were junior, we -- we shared the same -- the same kind of an attitude. And -- and I think it -- it took me a long time, years, to acknowledge that my role was really not to make the Crown's case, or to make the case of whoever wanted me in court, but really to be much more impartial. And though into the 1990s I would have told you that that was what my role was, I -- I think I was pretty lousy at executing it. I'm sorry for that -- for that language. I think I was poor at executing it. Though I knew what to do, I didn't do it and so my -- my understanding or my book knowledge was not -- was not borne out by my execution in court.

MS. LINDA ROTHSTEIN: And did your desire to make a case for the Crown lead as well to its converse? A feeling that you were there to refute the defence case?

DR. CHARLES SMITH: I -- I certainly felt that pressure at times when I walked into court; that pressure from a Crown attorney, yeah.

COMMISSIONER STEPHEN GOUDGE: Where did you get the sense originally that that was the role?

DR. CHARLES SMITH: I -- I think this is an expression of ignorance. The first time I went into a court case, you know, I had a -- I had a diagnosis of head injury, of non-accidental head injury. My colleagues had come to a similar thing and I think as we discussed the case in the hospital, it was our -- our view that this was a non-accidental head injury and we were going out there to make sure that a judge and jury understood it. And as I spoke to my colleagues from, you know, radiology or -- or what was, I think, the forerunner to the to SCAN Team, that was the sense that I had.
As I think back on it now, I wonder to what degree the -- the -- sometimes the advocacy role that was used by some at the hospital colored my thinking.
I certainly didn't understand sort of that concept of advocacy in the -- in the early '80s but I believe that I was giving an opinion as part of a group that was supposed to -- to make -- make it very clear to everyone what the right diagnosis was.

COMMISSIONER STEPHEN GOUDGE: And who at the hospital had an advocacy role then?

DR. CHARLES SMITH: Oh, there -- there -- before the SCAN Team was kind of redesigned under Dr. Mian, which would have been -- I'm -- I'm sorry I can't remember the year, it would have been mid or late '80s perhaps, there was prior to that others who were involved in those cases, and -- and they were -- they were proactive in -- in their investigation. As well, one (1) of the radiologists who I leaned heavily on, a -- a very senior gentleman, also was very clear cut in black and white and -- and that -- and...

CONTINUED BY MS. LINDA ROTHSTEIN: Who was that, Dr. Smith?

DR. CHARLES SMITH: Dr. Reilly, R-E-I-L- L-Y. Bernard, Bernie Reilly, who I presume he's deceased now because I was junior and he was towards the end of his career and --

COMMISSIONER STEPHEN GOUDGE: And this was a general atmosphere of advocacy against child abuse? Is that --

DR. CHARLES SMITH: Yes. I think -- I think that's a fair way of doing it. And -- and please understand, sir, that this is a period of time where the whole area of child abuse is just kind of coming into being and so there was a sense that this is a new area, we need to pay attention to it. And -- and it was almost wanting to educate and kind of bringing attention to this, and I think that might have been part of that advocacy community, or environment, or culture that -- that was exist -- in existence at that time.

COMMISSIONER STEPHEN GOUDGE: Thank you.

The inquiry, which has heard months of testimony from experts and former colleagues, was ordered after serious doubts were raised about opinions given by Smith in roughly 20 cases of suspicious child deaths. In more than 12 of those cases, Smith's decisions led to criminal investigations or convictions.

The inquiry's website:
http://www.goudgeinquiry.ca

Wikipedia page:
http://en.wikipedia.org/wiki/Charles_Randal_Smith