New Zealand Law Society - Careless handling of expert evidence

Careless handling of expert evidence

A Standards Committee has voiced its concern over the conduct of a defence lawyer who edited a forensic report and, without waiting for the report writer’s agreement, submitted the amended report as a “brief” to the prosecution. However, because of the junior status of the lawyer, the Committee “adopted an educative approach” (which included directing this anonymised publication) and took no disciplinary action.


The junior lawyer asked an independent forensic science consultancy based in the United Kingdom to review DNA findings of another agency in respect of a criminal case. By the time the agency provided a report to the lawyer, the trial was expected to start imminently.

The lawyer was concerned that the report contained material that should not be disclosed to the prosecution (such as inadmissible DNA results); he was concerned he would breach his duties as a defence lawyer if he disclosed the report as it was. He discussed the contents of the report with a senior colleague who agreed with his concerns; he said the senior lawyer advised him that it would be appropriate to delete certain sections of the report before disclosing a brief of the evidence he intended to lead from the expert.

The lawyer asked the agency to provide the report in an editable format so that he could propose amendments. The agency responded that it did not usually make changes to reports once they were finalised because an expert’s opinion needs to be independent of a lawyer’s preference” but it was happy to consider his suggestions.

The lawyer amended the expert report with his proposed changes. The amended document still included the agency’s letterhead and expert’s signature. He forwarded the amended document to the agency in the UK, noting that a brief needed to be disclosed to the prosecution as soon as possible. He hoped that the expert would be able to respond overnight. When he had not received a reply by the following day, the lawyer disclosed the amended version of the report to the prosecution, describing it as a ‘brief’ and stating a proviso that changes might be made prior to trial.

Two days later, the agency responded that it did not accept the suggested amendments and asked the lawyer to confirm the amended report had not been provided to the prosecution. The lawyer confirmed that the amended report had in fact been provided to the prosecution.

The agency discussed the issue with the lawyer’s supervisors over several months. (The trial had also been delayed.) That discussion resulted in the lawyer being instructed to send an email to the prosecution to explain the situation, advise that there was no intention to call the expert to give evidence at trial and make clear that the report, as disclosed, did not represent the experts “complete views” on the matter.

The agency nevertheless complained to the Lawyers Complaints Service about the lawyer’s conduct. It considered the conduct had been misleading and had the potential to negatively affect the reputation and impartiality of the agency and the expert who provided the report.

Need for scrupulousness in handling expert evidence

In his submissions, the lawyer defended his actions by saying that he had not (and would not have) filed the document in court, that he would have breached his duties as defence lawyer if he had disclosed the deleted sections to the prosecution, that the issue had been dealt with (the prosecutor had confirmed the document would be deleted). He also said that he simply removed passages from the report rather than making any changes to the factual findings, conclusions or actual wording of the report.

While the Committee accepted certain key facts, it had concerns. It noted that the lawyer’s intention had been to provide a brief, subject to change. Yet, the document was not in a standard format for a brief of evidence, it described itself as a “report” and it was watermarked “not for disclosure”. The Committee considered that, with the agency’s letterhead and expert’s signature, the prosecution "could reasonably have understood it as a complete expert report”.

The Committee said:

By failing to explicitly avoid the appearance of the report having been fully authored by an expert, when he had in fact made unauthorised amendments to the opinion…[the lawyer] demonstrated a careless disregard for the thoroughness required in handling expert evidence. In so doing…[the lawyer] did not treat the expert, or their opinion, with the integrity, respect and courtesy required by Rule 12.

It also concluded that the report “had the potential to unintentionally mislead the Court”.

However, the Committee also noted the lawyer’s role as junior counsel, that he had sought advice from a senior lawyer and that there was urgency to disclose material to the prosecution. It also noted that the report had been withdrawn once it was clear that the agency had not given its approval, that it had not in fact been filed in court and ultimately no one was misled.

On that basis, the Committee decided to take an “educative approach”, considering that the matter would already have been a “strong learning opportunity” for the lawyer. It decided that no further action was necessary or appropriate.

The Committee also directed anonymised publication of its decision to “raise awareness within the profession around the importance of thoroughness and transparency when preparing briefs of evidence and handling material from expert witnesses”.

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