The Ethics of Working as a Retained Forensic Expert

Abstract

Little has been published in the forensic medical literature on the ethics of being a retained expert witness. While the legal requirements are exclusively that the individual not lie under oath, there are a broad range of behaviors that, while legal, may not be acceptable as ethical among experts, yet may be considered expected services by the attorneys who employ them. Among these are pointed critiques of other experts’ work products, information about an opposing expert's background that can be used in ad hominem attacks, and use of privileged information obtained from online sources and professional committees. In order to examine whether a disparity exists between attorneys’ expectations and experts’ own ethical standards, a survey with eight ethical vignettes and several follow-up questions was sent to both forensic experts, attorneys, and law students. The results indicate that most forensic pathology experts are unwilling to oblige attorneys who expect their retained experts to disclose damaging material about an opposing expert and change their reports when asked to remove disputed evidence. This discrepancy has the potential to create conflict between attorneys and retained experts. Strategies to address these conflicts and improve professional ethics are discussed.