Walking the tightrope: Balancing professional ethics and duty to the court

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As the prosecution drew to a conclusion its evidence in the Oscar Pistorius trial, one notable expert had been absent from testifying. With vast experience and a book to her name, it may seem odd that Dr. Miccki Pistorius was not called as an expert witness as she has been often before. However, the reason may already be clear from her name, she is related to Oscar Pistorius; his aunt. Our blog ‘Oscar Pistorius Trial: The role of Expert Witnesses’ generally discussed the particular role of experts witnesses in the trial context. Due to their specific capacity to express their opinion, it is especially important for such witnesses to be objective. For obvious reasons, objectivity would have been impossible for Dr. Pistorius meaning she would be unable to fulfil her duty to be honest and impartial in serving the court’s needs.

This raises interesting questions as to what factors do impede the work of expert witnesses. We’ve previously discussed the implication of adversarial pressure of the “hired gun” effect on expert evidence. For psychology experts, like Dr Pistorius, and indeed many other professions with strict codes, ethics of their own profession may exist in conflict with the ethical duty they have to the Court. The Australian Psychological Society Code of Ethics (2007) proscribes a number of principles which guide psychologists in their work. However some of these, such as the principles of respect for the dignity and rights of other people, responsibility to client and the profession, veracity and justice all are challenged by the role of a forensic psychologist as an expert witness. 

Respect to the dignity and rights of other people requires that psychologists while expressing opinions in court about others must do so in a way that is not disrespectful about the parties and their profession. The principle of responsibility further maintains that psychologists during court work should be careful in critiques and reports on the work of their colleagues does not “reflect negatively on the profession or discipline of psychology”. This obviously can impede their ability to give an impartial opinion to the court. 

For psychologists the respect principle implying confidentiality also poses a significant challenge to their principle duty to be truthful to the court. Treatment experts who have a relationship with the client must be aware of the overriding duty to the court. Such paramountcy was confirmed in Willoughby v CID.[1] For many psychologists this often leads to a reluctance to testify as treatment experts, in order to avoid violating their principle of respect and practice of avoiding ‘multiple relationships’.

Ironically, this in itself leads to more challenges. As forensic psychologists, experts must avoid delving into a therapeutic relationships with parties as may be there natural wont. This would diminish their ability to be objective which we know is central to their role as experts. Yet at the same time they must be careful not to express opinions on areas of mental health that they are not specialised in and generally have shown reluctance in expressing opinions on an individual they have not assessed.[2] In assessing an individual unknown to them, psychologists are required by the court to make note of their limited opinion in order to maintain their objectivity.

Psychologists are just one of many professions where personal and professional ethics interplay with duties of objectivity and paramount duty to the courts. Dr. Miccki Pistorius would likely have had to excuse herself based on the ethics of her profession as well as the requirements of the court. As lawyers it is easy to forget that the law is not the only guiding principle our experts have and it is worth considering such factors when choosing an expert witness. For this reason we recommend choosing experiences experts who have navigated such murky waters before and are able to marry their overriding duty to the court with their own professional and personal ethics.

This article was prepared in conjunction with Susan Flynn.

[1] Willoughby v TCID (2008) NSLEC 238.

[2] Alfred Allan et al, ‘Psychologists as expert witnesses in courts and tribunals’ (2010) 4 InPsych 2010

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