expert evidence and police powers

Question 1

Why have it?

Answer 1

• In all trials, the jury make the decisions – this we know
• However, they are ‘normal’ people and while they may be educated, work specialised jobs and will all have their own interests
• There is no guarantee that they will be a specific expert, or even understand much of the evidence and technicalities of what is put in front of them

Question 2

An exception

Answer 2

• In order to ensure that everyone in the court was understanding information, particularly complex medical or psychological evidence, the rule of opinion evidence was adapted

Question 3

S30(1) CJA 1988

Answer 3

• An expert report shall be admissible as evidence in criminal proceedings
• They do not have to be there, but the court must give permission for them to be utilised

Question 4

Who are these people

Answer 4

• Traditionally, expert evidence was within academic sciences; medicine and it’s allied forensic sciences
• There was traditionally acceptance that those who were members of prof bodies could be qualified to act when needed

Question 5

Advance of technologies

Answer 5

• The advent of advanced and quick developing technologies has changed this field, and our understanding develops daily
• Therefore, each party needs to ensure their witness is both educated and qualified, but up to date on current developments

Question 6

Other areas of specialism

Answer 6

• Pathologists, fingerprint experts, psychiatrists, ballistic experts and forensic handwriting analysts now playing a huge part in both the defence and prosecutions role
• There are also calls for experts outside traditional academic sciences, such as engineering, computing and communications experts

Question 7

Strange examples

Answer 7

• Browning [1991]: specialist was called to help identify different types of the Renault 25
• R v Cooper [1991]: a zoologist specialised in the social behaviour of bottle nosed dolphins
• There is no exhaustive list of the type of specialists, however the UK Register of Expert Witnesses has 17,000 entries

Question 8

Assessing whether we need expert witnesses

Answer 8

• Is expert opinion necessary or permissible?
• The need to evaluate the quality of the evidence in question in order to determine whether it out to be admitted by the court

Question 9

When is expert necessary?

Answer 9

• Criminal Procedure rules 2015:
• …admissible in criminal proceedings at common law if i) it is relevant to a matter in issue in the proceedings ii) it is needed to provide the court with information outside the courts knowledge and iii) the witness is competent to give that knowledge

Question 10

Restrictions on the scope of expert opinion

Answer 10

• Turner [1975] if a particular issues does not require specialist knowledge, then an expert should not be called and the matter should eb left entirely on the Jury
• If the evidence falls within the knowledge and experience on the jury or where it concerns an issue of human nature, then expert evidence would not be admissable
• Experts must confine themselves to matters that fall within their area of competence
• They must be prepared to corroborate their evidences if challenged, by citing other admissible evidence
• The expert needs to be able to acknowledge the source and basis for their findings

Question 11

The exper use of witnesses in mental abnormality cases

Answer 11

• In diminished responsibility or insanity cases, expert witness is heavily used
• When considering the effect of abnormality on the subject’s behaviour or responsibility, this needs to be assessed by someone whom has that expert education and training

Question 12

O’Brien [2000] How much do the jury have to listen?

Answer 12

• “…If such expert evidence is admitted, the jury must be directed that they are not obliged to accept such evidence. They should consider it if they think it is right to…”

Question 13

the requirement in mental abnormality cases

Answer 13

• There must be relevant medical evidence within insanity and DR cases, and it is essential (Criminal Procedure (insanity and Unfitness to Plead) Act 1991) that the defence is supported by evidence
• If there is insufficient evidence, the judge will not permit the case to move forward and will not consider the issue

Question 14

Lie detectors-

Answer 14

• It is not admissible on the issue of lie detectors if the expert merely thinks he can detect lies
• Lie detector evidence is not used in English Criminal Investigations or trials

Question 15

Are they really an expert?

Answer 15

• Opinion evidence on matters requiring expert knowledge must always be accepted from someone who has the expertise
• The judge will determine competency of the witness
• It is dependant on their formal qualification or practical experience to give their expert evidence

Question 16

Silverlock [1894]

Answer 16

• There is no formal rule of law or statute which declares that expert witnesses should need to hold formal qualifications, but common sense will push the judge to ensure that it is there
• Especially medical evidence – it will be expected that formal qualifications are held

Question 17

Theodosi [1993]

Answer 17

• Just because you are an expert witness does not mean you are an expert on everything
• Your evidence must be retained to the knowledge which you held
• You cannot spout opinions on things where your knowledge is the same as everyone else!

Question 18

The use of hearsay

Answer 18

• Occasionally, the rule against hearsay can be used by expert evidence
• They may give their opinion but it will involve using the existing body of research in the area, such as articles, unpublished stats etc
• Abadom [1983]

Question 19

S127 CJA 2003

Answer 19

• An expert witness may base an opinion or inference on a statement prepared for the purposes of criminal proceedings or for the purposes of a criminal investigation by another person who may reasonably be supposed to have personal knowledge of the matters stated
• The powers in S127 are most likely to be used when the original expert witness is not available or where the findings are largely accepted and not seriously open to dispute
• McGuire [1985]

Question 20

Can expert witnesses decide guilt?

Answer 20

• This is something we refer to as the ‘ultimate issue’

- It effectively asks whether expert witnesses can say on the basis of their evidence whether a D is guilty

Question 21

S3 civil evidence act 1972

Answer 21

• Abolished common law restrictions as far as they relate to civil cases
• It has not been formally abolished within criminal courts and is widely ignored
• The main reason why people cannot comment on whether their evidence = guilty is because they are only commenting on a very small part of the entire case

Question 22

Guidance

Answer 22

• You do not have to accept the evidence of the experts, you do not have to act upon it. You do not have to accept even the unchallenged evidence of an expert…”

Question 23

Objectivity

Answer 23

• Expert witnesses must be objective, they are there to serve the courts – not just the side which hire them
• Injustice could be caused by failure to disclose forensic evidence which the prosecution discovers but may help the defence

Question 24

Theory dressed as fact

Answer 24

• Bear in mind, the expert witnesses control the room. How much do any of us know about the intricacies of social habits of bottle nosed dolphins?
• There is a need for there to be clear divides demonstrating what is theory and what is fact, and to enable the court to choose which to follow

Question 25

DNA and statistical evidence

Answer 25

• DNA profiling is an incredibly complex and length process and one which needs explanation to a jury
   This is to avoid juries being given the impression that evidence is conclusive when it may well not be
   Ensuring that it is explained truthfully and fully is the absolute key here – to avoid juries reading the wrong way into data

Question 26

Competence of witnesses

Answer 26

• S53 Youth Justice and Criminal Evidence Act 1999: all persons of whatever age are presumed to be competent as witnesses in criminal proceedings
• Most witnesses are also ‘compellable’ which means they can be committed to prisons without formal trial for contempt of court if they refuse to testify

Question 27

Children under 14

Answer 27

• Set out in S53(3) of the 1999 Act, their competence depends on the ability to
• Understand questions as a witness
• Give answers which can be understood

Question 28

Young people (14-17) and the mentally ill or handicapped

Answer 28

• 14+ witnesses give evidence on oath
• The test for giving evidence on oath is based on ‘the appreciation of the solemnity of the occasion and of the responsibility to tell the truth.’ (S55(2)

Question 29

If competency is raised

Answer 29

• It will be presumed that anyone over 14 will be competent, but if this is not the case then the party who has called for them must be the ones who establish the competency

Question 30

Spouses and civil partners defendants

Answer 30

• D’s spouse can be compellable as a witness for him or for the prosecution (but for the prosecution, only in certain situations)
• Whether these specific rules should really exist at all are problematic and up for debate, but effectively they do exist and are now extended to civil partners