Expert Evidence

Question 0

What is expert’s duty to court?

Answer 0

Help court achieve overriding objective: give objective, unbiased opinion on matters within his expertise.

Question 1

What is an ‘expert’?

Answer 1

A person required to give/prepare expert evidence for the purpose of criminal proceedings.

Question 2

What is the significance of duty to court?

Answer 2

It overrides any obligation to person from whom he received instructions.

Question 3

What must an expert’s report contain (first five elements)?

Answer 3

1. Details of expert’s qualifications, relevant experience and accreditations.
2. Details of literature/other information which expert has relied on in report.
3. Statement setting out substance of all facts given to expert which are material to opinions expressed in report/upon which those opinions are based.
4. Make clear which of the facts stated in the report are in the expert’s own knowledge.
5. say who carried out any examination, measurement, test or experiment which the expert has used for the report and-
   i) give qualifications, relevant experience and accreditations of that person.
   ii) say whether the examination, measurement etc was carried out under expert’s supervision, and
   iii) summarise findings on which expert relies.

Question 4

What must an expert’s report contain (second five elements)?

Answer 4

State:

1. Where there is a range of opinion on matters dealt with in report:
   i) summarise range of opinion, and
   ii) give reasons for own opinion.
2. If Expert is not able to give opinion without qualification, state the qualification.
3. contain a summary of conclusions reached,
4. Contain statement that expert understands his duty to court, and has complied and will continue to comply with that duty, and
5. Contain the same declaration of truth as a witness statement.

Question 5

If a party wants to rely on expert evidence, what must they do?

Answer 5

1. Serve it on:
   i) court officer and
   ii) each other party.
2. Serve it:
   i) ASAP, and in any event
   ii) with any application in support of which that party relies on that evidence, and
3. If another party so required, give that party a copy of/reasonable opportunity to inspect:

i) a record of any examination… on which the expert’s findings and opinions were based/that were carried out in corse of reaching those findings and opinion, and
ii) anything on which any such examination… was carried out.

Question 6

When may a party not introduce expert evidence? Unless?

Answer 6

If they have not complied with rule regarding service of it.

Unless:

a) every other party agrees, or
b) court gives permission.

Question 7

What happens if more than one party wants to rely on expert evidence?

The content of discussion between experts must not be referred to without?

Answer 7

Pre-hearing discussion.

Court may direct experts to-

a) discuss the expert issues in proceedings, and
b) prepare statement for court on matters on which they agree and disagree, giving reasons.

Apart from the statement, the content of discussion must not be referred to without court’s permission.

Question 8

What if more than one defendant wants to introduce expert evidence?

What if co-Ds cannot agree who should be expert?

Answer 8

Court may direct that evidence on that issue is to be given by one expert only.

Court may-

a) select expert from a list prepared for/identified by them, or
b) direct that the expert be selected in another way.

Question 9

What if SJE is to be used?

What if co-D does use SJE?

What are co-Ds potentially liable for?

Answer 9

Each co-D may give instructions to expert.

D must, at same time, send copy of instructions to other co-Ds.

(Unless court otherwise directs) the co-D are jointly and severally liable for payment of court’s fees and expenses.

Question 10

Re: SJE - what may court direct on?

Answer 10

1) payment of fees and expenses (court may limit the amount that can we paid by way of fees and expenses), and
2) any examination… to be carried out.

Question 11

What is general rule of opinion evidence?

Answer 11

Inadmissible. Witnesses expected to testify only of facts they personally perceived.

Question 12

What are exceptions to rule?

Answer 12

1. Non-experts: if statement of opinion made by witness as a way to convey relevant facts personally perceived by them, then admissible as evidence of what he perceived.
2. Expert evidence: statement of opinion on any relevant matter calling for expertise may be made by witness qualified to give such opinion.

Question 13

Where does burden for admission lie in event of objection to use of opinion evidence?

Answer 13

With party proffering to prove its admissibility.

Question 14

Where can opinion of person not be admitted?

Answer 14

Where it is an issue ‘the very matter which the court itself has to determine.’

Question 15

What must expert evidence be based on?

Answer 15

Specialised experience, knowledge or study.

Question 16

Expert evidence may be adduced only if-

And cannot be adduced if-

Answer 16

When matter calls for expertise, which a lay person eg magistrate or juror could not be expected to possess to a degree sufficient to understand the evidence in the case unaided.

…the tribunal of fact can form its own opinion without the assistance of the expert, the matter being within its own experience and knowledge, leaving expert evidence unnecessary.

Question 17

To what degree may jury rely on expert evidence?

Answer 17

If the opinion falls short of scientific certainty.

Question 18

What is the test for expert evidence admissibility?

Answer 18

1. Does the subject matter call for expertise?
2. Does the expert have requisite experience?
3. ‘Whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.’

Question 19

When is medical evidence admissible regarding credibility of witness?

Answer 19

To show witness suffers from some disease or defect or abnormality of mind that affects the reliability of his evidence. Such evidence is not confined to a general opinion of the unreliability of the witness but may give all the matters necessary to show, not only the foundation of and reasons for the diagnosis, but also the extent to which the credibility of the witness is affected.

Question 20

What if expert is misinformed about facts?

Answer 20

If that, or has flame irrelevant facts into consideration/omitted relevant ones, then opinion is likely to be valueless. When called in examination-in-chief, witness should be asked to state the facts upon which his evidence is based.

Question 21

How does expert escape hearsay rule?

Answer 21

He may rely upon such facts of which he does not have first-hand knowledge as part of the process of forming an opinion. Note: if no direct evidence exists to establish facts, then weigh to be attached to opinion of expert is likely to be minimal.

Question 22

When may an expert give opinion on ultimate issue?

Answer 22

Provided the actual words he employs are not noticeably the same as those which will be used when the issue falls to be considered by the court.

Question 23

When will section 127 of CJA apply?

Answer 23

1. Statement prepared for crim proceedings.
2. Person who prepares statement had/may reasonably be supposed to have had personal knowledge of matters stated.
3. Notice is given under appropriate rules that another person (expert) will in evidence orally in proceedings/under s9 of Criminal Justice Act 1967 base an opinion or inference on matter stated.
4. notice gives name of person who prepared the statement and the nature of matters stated.

Question 24

What is the duty of expert witness?

What would be a misdirection?

Answer 24

Furnish judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form an independent judgement by application of those criteria to the facts proved in evidence.

To tell the jury that expert evidence should be accepted if uncontradicted.

Question 25

What should form part of summing-up in cases where proving guilt consists solely of expert evidence?

Answer 25

1. Must be a logically justifiable basis for accepting/rejecting the evidence.
2. The issues, the expert evidence and sources of that evidence should be clear.
3. Judge should take time to discuss the issues of expert evidence before counsel present case to jury.
4. Judge will be able to identify which evidence goes to resolve which issues.
5. Special caution: Jury should be asked to judge whether expert has assumed role of advocate, influenced by side whose cause he seeks to advance. If so, jury should ask whether he has gone outside area of expertise. Can expert point to basis of opinion?