How much does the word weigh? About the costs of the wrong selection of court experts and how to minimize them

Abstract

Authors of the paper analyze both legal and organizational determinants of the expert witness choice in the scope of penal and professional judicial cases concerning medical law. The analysis starts with laying out two case studies revolving around the matter of obstetrical misconduct. In both those cases, the initial expert witness’ opinions were implying doctor’s liability for death of the fetus; the following judgements, in turn, were leading to lack of guilt on part of the physicians. Prolonged criminal trials - even if caused only by the misjudgments of expert witnesses - are connected with immense material and immaterial costs for the society, medical community and the physician himself. From that perspective, making the right choice of expert witness seems to be crucial for the “quality” of judicial procedure. The problem arises although because of the fact that the courts/the prosecutor do not possess the necessary specialist knowledge (hence the reason of using expert witnesses in the first place) of which a certain level is required to make a proper choice of expert on that particular matter. However, the courts (prosecutor's office) can not be released of that responsibility; we should rather try to answer the question of the best possible conditions, both legal and organizational, that should be provided to the court (prosecutor's office) in order to make the best choice possible.