Law of Evidence and Expert Witnesses - Essay Example

Number Word Count: 1459 Expert Witnesses The rules regarding expert witnesses seemingly regulate and limit any amateur witnesses from coming in and submitting evidence as an expert witness. These rules come from the statutory provisions set out in the Criminal Procedure Rules 2005 and Civil Procedure Rules 1998, as well as a selection of case law which tends to limit who can be considered a witness for trial purposes.1 By analysing the law that governs the use and admission of expert witness testimony, it can be determined if amateurs are in fact allowed to testify in situations where the area of expertise is sufficiently obscure, or if they are in fact considered experts with regards to the current legal rules by which all expert witnesses are judged by. There is much controversy as to the weight that should be placed on expert testimony in the criminal law. This controversy arises due to the fact that expert evidence is essentially hearsay evidence, and also that there have been many occasions where it is later found that the expert who had provided testimony was not accurate. One example is the case of R v Cannings [2004], where the convictions for the murder of the defendant's sons were quashed on the basis of new medical evidence which discredited the expert witness at trial.2 Although the expert witness (a doctor) was a recognised professional in his field at the time, evidence later showed that his account of what he thought took place was actually fabricated and not backed by the evidence.3 Although the test at the time was passed, the actual quality of the evidence was controversial, so even in this case where the doctor was seemingly an expert at the time, his testimony proved to be damaging at trial. Another important case to analyse is the case of R v Luttrell [2004] approved the following passage from the textbook Cross and Tapper on Evidence by Colin Tapper and Rupert Cross: "The better and now more widely accepted view is that so long as a field is sufficiently well-established to pass the ordinary tests of relevance and reliability, then no enhanced test for admissibility should be applied, but the weight of the evidence should be established by the same adversarial forensic techniques applicable elsewhere."4 This test is the current common-law test in order to determine if expert testimony should be submitted. The case involved lip reading evidence being questioned as it is not an exact science or profession; the court held that this passed the test for relevance and reliability which is all that was needed to be allowed. Here, although the validity of the expert evidence was questioned, it proved to be accurate and sufficient. Another case which operated along these lines is that of R v Dallagher (Mark Anthony) [2002], which involved the admission of an ear-print expert who was brought in to analyse and compare an ear-print found at the crime scene with that of the defendant; the court held that although the field is relatively small, the expert was part of a group which were recognised within the field.5 Expected opinion evidence is used in order to assist the court and jury on matters which lie outside the experience or understanding of ordinary jurors or justices.6 If jurors or justices can be expected to understand evidence from their own view on any issue without such expert assistance, then expert testimony is not to be received, as was held in the case of Folkes v Chadd [1782].7 Trials operate on the premise that "courts and juries do not need psychiatrists to tell them how ordinary folk who are not suffering from mental illness are likely to react to the stresses of life."8 The case of R v Henry; R v Manning [1968] held that low IQ is not a mental illness and expert evidence was not admissible to explain behaviour where no mental illness exists.9 Expert evidence will ordinarily be considered necessary and admissible on matters of science, medicine, authenticity or questions of foreign law.10 There are also dangers with expert opinion evidence, as can be seen by the case of R v Snell and Wilson [2007]. In this case two defendants were convicted of sexual offences against children, however the complainants were now adults; the court of appeal held that there is danger in expert evidence on the topic of memory since this may lead to statements of believing the memory to be a true or not.11 Conversely, in the case of R v Clark [2006], which had similar facts, the court did allow expert opinion evidence as it was seen that hypnotherapy fell outside the everyday knowledge of jurors.12 Although hypnotherapy may not be widely recognised in the medical field as being a legitimate practice, for the purposes of the case, it was deemed to be sufficient to explain certain evidence for the jury to understand. The test to determine who is an expert can be seen by the case of R v Silverlock [1894]. In this case the court was satisfied with the competence of an amateur handwriting expert since he studied this as a hobby over many years.13 It must be asked whether the witness is sufficiently skilled to give expert evidence, or has the necessary means of knowledge to assert his opinion; however the trial judge will determine this.14 The case of R v Oakley [1979] further demonstrates this point, as an experienced police accident inspector was competent to determine the cause of a collision.15 These two cases demonstrate that even though a designated expert witness may not live up to what society may deem an expert to be; they can be determined to be an expert on a particular matter on which the court may need clarification as the matter may be outside what may be considered within the everyday knowledge of jurors. Expert witnesses may express opinions only on matters falling within their own areas of expert knowledge or competence, as was held in the case of Hinds v London Transport Executive [1979].16 This is to limit the influence that their testimony would have on other aspects of the case as it would be considered hearsay.17 At common law, an expert witness was not permitted to express an opinion on the "ultimate issue" as to the ultimate issue of guilt or innocence, because this would involve expressing a view on the other evidence, as can be seen in s.3 of the Civil Evidence Act 1972: " (1) ... where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give evidence shall be admissible in evidence"; ... (3) In this section 'relevant matter' includes an issue in the proceedings in question." 18 Based on the relevant case law and statutes, it would seem as if the rules which govern the reception of expert witness testimony are sufficiently strict to prevent miscarriages of justice. They are also sufficiently strict to allow expert witnesses only in situations where required by the jury to explain what would be considered in their everyday knowledge. Also, the common-law outlines who can be an expert in which situation, and this places a restriction on amateur-like witnesses from presenting evidence. Although some scenarios in the case-law make it seem as though amateur witnesses are brought in, every witness is subject to the current common-law and statutory tests which limit the use of expert witnesses to where necessary. Bibliography Books Tapper, Colin, Rupert Cross. Cross and Tapper on Evidence 11th Edition. U.K.; Oxford University Press, 2007 Uglow, Steve. Evidence: Text and Materials Second Edition. London; Sweet and Maxwell, 2006 Cases Folkes v Chadd (1782) 3 Doug KB 157 Hinds v London Transport Executive [1979] RTR 103, CA R v Cannings [2004] 1 All ER 725 R v Clark [2006] EWCA Crim 231 R v Dallagher (Mark Anthony) [2002] EWCA Crim 1903 R v Henry; R v Manning [1968] 113 S.J. 12 R v Oakley [1979] 70 Cr App R 7 R v Silverlock [1894] 2 Q.B. 766 R v Snell and Wilson [2007] 2 All ER 974 Statutes Civil Evidence Act 1972 Civil Procedure Rules 1998 Criminal Procedure Rules 2005 Read More