Admissibility of Expert Opinion Evidence - Essay Example

Admissibility of Expert Opinion Evidence Name: Lecturer: Course: Date: In the United Kingdom, the common law approach to the admissibility of expert opinion evidence is one of laissez-faire, with such evidence being admitted without sufficient regard to whether or not it is sufficiently reliable to be considered by a jury. Introduction Expert testimony is the keystone to an arson attack or deliberate act of causing fire to maliciously destroy property and lives. It helps establish the Corpus Delicti, or the body of evidence that make up the offence. Additionally, it serves as the framework for a string of other evidences during a trial. For fire investigations, testifying at trial is normal for fire investigators who have the education, training, and experience to determine the cause and origin of fire (InterFire 2014, 1). Indeed, the final step in any fire investigation process is presenting expert opinion at a trial. Still, several controversies have faced the admissibility of expert opinion due to its laissez-faire or individualistic aspect, where such opinion may be admitted regardless of their quality of its reliability, accuracy, and sufficiency. It is such individualist aspect that throws doubt to its reliability. It is based on this backdrop that this essay argues that the admissibility of expert opinion evidence is largely one of laissez-faire and therefore, the jury is likely to make inaccurate decisions at the end of trial when unreliable expert evidence twists their (jury) perception of facts. An expert opinion of uncertain reliability is often admitted independently with restricted challenge, despite the weak criteria for determining its reliability. As established in the case law Turner [1975], an expert opinion is permissible to provide the court with information that is potentially outside the knowledge and experience of a jury or a judge. If the judges can form their own conclusion based on the proven facts without the external help, then expert opinion is not necessary (Law Commission 2009, 25). Put differently, for evidence provided by the expert opinion to be admissible in a court of law, it has to furnish the court with information that is likely to be outside the experience and knowledge of the judge or the jury. At the same time, it should be evidence that helps the court in forming opinions. Incidentally, in the United Kingdom, the common law approach to the acceptability of evidence provided by an expert opinion is one of laissez-faire, where such evidence can be acknowledged without sufficient consideration on whether or not it is satisfactorily reliable to be considered by a jury. Within this context is the approach used in arson proceedings during jury trial. The Court of Appeal has numerously cited the Australian case of Bonython [1984], where the court considered three relevant factors in determining whether expert opinion should be admissible in a UK court. First, the subject matter of the opinion should be considered in the event that an individual without experience in the field of knowledge would have the capacity to form sound judgement regarding the issue at hand without the assistance of a witness who possesses special knowledge or expertise in the field. Next, when the subject matter of the opinion forms part of a body of experience or knowledge that is sufficiently recognised as capable of being accepted as a reliable body of experience or knowledge that can render the expert’s opinion as of assistance to the court. Third, whether the expert witness has studied in the field, or acquired sufficient experience or knowledge in the field to render his opinion as valuable in deciding issues of the court (Law Commission 2009, 23-25). Still, it could be argued that the three criteria denote minimally restricted freedom or laissez faire admissibility of expert opinion since there is no criteria or benchmark to establish ‘sufficiency’ of the evidence provided by the expert witness. Indeed, it could be reasoned further that since common law assumes that the expert witness is an expert based on the three outlined criteria, he (the expert witness) enjoys monopoly in the expertise or knowledge he provides despite their potential to mislead the jury. As established in the case Hodges [2003] and Field v Leeds City Council [2001], an expert has to be able to provide impartial opinion in respect to the fact that he has overriding duty to the court rather than the party calling him to testify. Still, while regard for impartiality is needed in a court of law (since the expert opinion may have monopoly over the knowledge he provides to the jury), it is still difficult to determine the impartiality of his opinion. The possibility of misleading the jury therefore exists (Kassin et al 2001, 405-408). In regards to the position taken by the common law as established in the above criteria, it could be argued that while expert evidence and independence is necessary in a criminal proceeding, this should only be so when it can be established to be sufficiently reliable for consideration by the jury. In which case, there should be a mechanism through which evidentiary reliability of expert evidence can be determined (Law Commission 2009, 24). Additionally, it is difficult to determine whether the expert witness’ evidence is sufficiently organised to be admissible as a reliable body of experience or knowledge. At the same time, there looms the case specific question regarding whether an expert witness has sufficiently drawn from a reliable set of experience or knowledge to furnish the jury with reliable opinion on factual issues that remain to be resolved by the jury (Kassin et al 2001, 405-408). Yet again, due to the limited role of the jury as a passive fact-finder rather than an active investigator, the faults in evidence provided by the expert may not be revealed effectively during trial due to the possibility that a jury may only defer the expert opinion. In which case, if expert evidence is not sufficiently reliable, chances are that its laissez faire aspect will be admissible (Law Commission 2009, 33). The laissez faire aspect of expert witnessing in a court of law is indeed problematic because of the likely weaknesses on the part of fire investigation experts, who serve as expert witnesses, or the scientific methodology they use. As established in the case of Cannings [2004], it may be occasionally accepted that what the expert witness provided to the jury is practically wholly expert evidence that provides sufficient proof. Still, the existence laissez faire aspect in the scientific methodology used implies that an expert witness maintains a significant amount of freedom to guide the trial towards an unexpected course, whether accurate or not. A similar remark was made in the case of Holdsworth [2008], where the conclusions provided by experts involved processes of induction that inferred conclusions made from facts and based on other experience and knowledge. Still, it is logical that caution be necessary where scientific knowledge of the method involved is likely to be unreliable. Without a doubt, knowledge is dynamic and as it increases, what is regarded as unique today may be an outdated knowledge in future (Law Commission 2009, 33). A theoretical explanation is that expert witnesses are necessarily given the freedom to take their own course of methodology and explanation since they are expected to educate the jury or to point at relevant aspects of the expertise and knowledge to allow the jury to determine which evidence the expert’s opinion should relate to. Undoubtedly, this holds true for a category of the less complex fields of specialised knowledge (Lathrop 2002, 1). Still, in situations where the field of expertise is specifically difficult to understand, since understanding the field calls for preliminary understanding of advanced statistics or mathematics, it can be reasoned that the jury may only have to defer to the knowledge the expert witness provides when considering alternative on how to resolve the disputed factual issue pertaining to the expertise. However, since in specialised knowledge the expert is expected to virtually have monopoly over the knowledge, considering his opinion features as the most immediate alternative. To this end, the expert’s opinion may be extremely persuasive in respect to the assistance it provides (Kassin et al 2001, 410-12). Therefore, the degree to which the expert will be granted freedom, will determine the degree to which is evidence will be persuasive. Hence, the higher the degree of freedom granted, the greater the level of their persuasiveness. While this is not inevitably a bad thing when the evidence the expert provides is reliable, it would be impractical if the evidence provided is inaccurate. Conclusion The admissibility of expert opinion evidence is largely one of laissez-faire and therefore, the jury is likely to make inaccurate decisions at the end of trial when unreliable expert evidence twists their (jury) perception of facts. The basis for this is that an expert evidence of uncertain reliability is often admitted independently with restricted challenge. As argued, the laissez faire aspect of expert witnessing in a court of law is indeed problematic in arson trials. This is partly because of the likelihood that weaknesses on the part of fire investigation experts, who serve as expert witnesses, or the scientific methodology they use. While expert evidence and independence is necessary in a criminal proceeding, this should only be so when it can be established to be sufficiently reliable for consideration by the jury. In which case, there should be a mechanism through which evidentiary reliability of expert evidence can be determined. References InterFire 2014, Expert Testimony in an Arson Case, viewed 10 Dec 2014, Kassin, A, Hosch, M, Tubb, A & Memon, A 2001, "On the "General Acceptance of Eyewitness Testimony Research," American Psychologist vol 56 no 5, pp.405-416 Lathrop, M 2002, The Changing Face of Expert Evidence, viewed 10 Dec 2014, Law Commission, The 2009, “The Admissibility Of Expert Evidence in Criminal Proceedings in England and Wales a New Approach to the Determination of Evidentiary Reliability,” A Consultation Paper: The Law Commission Consultation Paper No 190 Wicket, G 2013, "West Fertilizer Company Explosion in Texas and the Role of Experts," Claims Journal, viewed 10 Dec 2014, Case Laws Bonython [1984] 38 SASR 45 Cannings [2004] EWCA Crim 1 Field v Leeds City Council [2001] 2 CPLR 129 Holdsworth [2008] EWCA Crim 971 Hodges [2003] EWCA Crim 290 Turner [1975] QB 834 Read More