Chapter 8- Opinion Evidence Flashcards
What are the exceptions to the rule that opinion evidence is in general inadmissible?
There are two exceptions to the general rule, namely:
1) A layman may express an opinion on a matter which is difficult to explain other than by opinion;
2) An expert may express his opinion on a matter which requires expert knowledge and which falls within the sphere of his expertise.
What is the general rule with regards to the admissibility of opinion evidence?
Evidence which is an opinion, or reflects the opinion of a witness, is as a rule inadmissable.
What are the reasons for the existence of the general rule that opinion evidence is inadmissible?
One of two reason is usually advanced for the existence of this general rule.
1) The witness appropriates the functions of the court.
- This argument doesn’t carry any weight, because as Wigmore put it it is “a mere bit of empty rhetoric”.
2) The evidence of a witness’s opinion is irrelevant.
- In general, only the observations of a witness are relevant: it is said that the inference he draws from his observations is not relevant, as it has little evidential value.
What is the extent of the rule relating to opinion evidence in practice?
Evidence to a large extent, normally contains opinions. The general rule that opinion evidence is inadmissible can therefore not remain unqualified.
The “observations” of witnesses are often allowed, notwithstanding the fact that they contain both observations and inferences. If they weren’t allowed as such, then in many cases the whole legal process would become absurd because to distinguish between opinion and observation is virtually impossible.
In many instances, however, am opinion is relevant in as such and therefore admissible. This doesn’t mean that it has much probative value, just as ordinarily admissible evidence may have little probative value.
What is the point of departure with regards to the admissibility of non-expert opinion?
The court itself, like any other non-expert or layman, can draw inferences from a set of facts and therefore the layman’s opinion is irrelevant. Schmidt 459, points out that certain NB requirements must be met before opinion evidence becomes admissible.
What requirements does Schmidt point out that need to be met before opinion evidence becomes admissible?
READ PAGE 111-112!!!
1) Competence;
2) Grounds upon which opinion is based must be stated;
3) Non- substitution.
What is the rule in Hollington v Hewthorn with regards to the question of whether opinion evidence which is admissible in one case, is also admissible in another case?
This old English case laid down the rule that opinion evidence, which is given in a criminal case, isn’t admissible as evidence in a subsequent civil action. This rule was so vehemently criticized that it gave to an amendment of the law of England.
How is the general rule regarding the admissibility of opinion evidence applied in our law?
The Hollington was also fiercely criticized in SA. Even the AD suggested that the Hollington should be reconsidered .
It is submitted that every set of facts must be decided upon it own merits. If the opinion evidence in the first case was properly admitted and it is relevant in the second case, there is no reason why it can’t be allowed in the later action. Zeffertt’s 343 recommendation that the time is ripe for the SCA or legislature to end all this uncertainty, is supported.
Is the rule in Hollington still established in our law?
The Hollington rule is still firmly established in our law, as was seen in Attorney-General, Northern Cape v Bruhns, where Miller, JA rejected the approach in Khanyapa and applies the Hollington rule.
What are examples from practice where non-expert opinions were admitted? -6 points
READ PAGE 114-115!!!!
1) Handwriting (s228 of CP Act);
2) Identification;
3) Speed, age condition and value;
4) Intoxication;
5) Matrimony;
6) Reputation.
What are reasons why expert evidence is admissible?
One specific consideration puts the opinion evidence of an expert on a different footing: because of his particular knowledge or training, an expert is better equipped than the court to make inferences from a specific set of facts.
Where Lyman’s opinion is irrelevant, an expert’s opinion is
relevant, because he can provide information the court doesn’t
have.
A court shouldn’t summarily reject a well motivated expert opinion. This doesn’t mean that the court must accept the opinion without further ado.
When does the rule regarding the admissibility of expert evidence apply?
READ PAGE 115-116!!!
Only applies where a witness relies on his expert knowledge to form an opinion. An expert who gives evidence on a matter not so technical as to require expert evidence, is in fact regarded as a layman.
What are the requirements for the admissibility of expert evidence?
READ PAGE 116-120!!!
The 3 requirements applicable to a layman’s opinion, apply in this instance as well.
1) Competence: Qualifications
2) Grounds upon which the opinion is based;
3) Non-substitution;
4) Formal requirements.
When may an expert be subpoenaed to give evidence?
Even an expert who has no personal knowledge of the facts of a case but whose expertise is required, and who is subpoenaed, is compelled to testify in court, be it unwillingly. If he had to prepare himself beforehand for the task, he may charge a fee, but that is an arrangement between himself and the party that calls him.
What are examples of expert evidence?
READ PAGE 120-125!!!!
1) Handwriting;
2) Finger, palm and footprints;
3) Medical evidence;
4) Textbooks;
5) Tool marks and ballistics
6) Foreign law;
7) Intoxication.
