T19 Opinion evidence and experts Flashcards
What is the purpose of evidence in court?
To assist the court in determining whether a fact in issue is proved or disproved.
What are the three main categories of evidence?
a) oral testimony
b) documentary evidence
c) real evidence
What type of evidence do witnesses of fact provide, and why are they not allowed to give opinions?
They provide factual evidence based on what they saw or did.
They are not allowed to give opinions because it’s the court’s role to draw conclusions from the facts.
Witness of fact are supposed to just give facts NOT OPNIONS ITS FOR COURTS TO DECIDE
What are the disclosure requirements for the prosecution and defence before trial?
The prosecution must disclose all its evidence to the defence in advance,
BUT the defence is only required to provide a defence statement outlining their DEFENCE AND ISSUES RAISED and listing any witnesses they intend to call.
What is the usual procedure for a witness of fact giving evidence in court?
A witness of fact usually gives sworn evidence, is examined-in-chief by the calling party, then cross-examined.
Judges will stop any attempts to introduce opinion or comment evidence.
What is an opnion in legal terms
Legal terms its an inference drawn from a fact, REMEMBER ITS FOR THE COURT TO DO THIS NOT THE WITNESS
What are the two exceptions when a witness can give an opnion
The opinion conveys perceived facts without needing expertise (e.g. “the car was going fast”) - THIS IS ACTUALLY WITNESS GIVING A FACTUAL ACCOUNT OF WHAT HE SAW
OR
The witness is an expert giving an opinion within their area of expertise.
Expert Evidence
Why is expert evidence allowed in criminal cases?
Expert evidence is allowed to help the court with technical issues outside its knowledge.
Expert evidence usually give evidence of OPNION, they are an exception to the GR
When can expert evidence be presented in a criminal case?
Expert evidence can be presented if the evidence is not sufficiently understandable to the jury without it.
The expert’s opinion helps the jury interpret complex or technical issues.
When can an expert give opinion evidence in a criminal case?
An expert can give opinion evidence only on a subject that requires expertise.
They cannot give opinion evidence on matters that the fact finder (e.g., the jury) can understand based on their own experience or knowledge
Can a witness express an opinion on the ultimate issue in a case?
Generally, witnesses should not express an opinion on the ultimate issue.
However, expert evidence may be called to address the ultimate issue, such as a facial mapping expert in identification cases.
Are fact finders required to accept expert evidence?
No, fact finders are not bound to accept expert evidence.
However, unchallenged and unequivocal expert evidence should only be rejected for a specific reason.
Who is considered an expert in criminal proceedings?
An expert is a person who gives or prepares expert evidence (report) for criminal proceedings, including issues like fitness to plead, evidential cases
(e.g., forensic accountants), or sentencing (e.g., psychiatrists for addiction issues).
How is the competence of an expert determined, and who decides if someone is an expert?
An expert’s competence may come from formal study, training, experience, or both.
IF a party seeks to object the admissibility of expert opinion, its for the party seeking to adduce the evidence to prove its admissibility
It is for the court to decide who qualifies as an expert, and a voir dire may be required in some cases.
How can an expert’s qualifications be determined, and what are the requirements for certified expert witnesses?
Statutes may prescribe specific qualifications for experts, such as requiring two registered medical practitioners for insanity defenses.
Experts can also become certified through the Expert Witness Institute, where competencies are assessed, and they must complete CPD and undergo re-assessment every 5 years.
What is the expert witness’s duty to the court?
An expert witness must provide objective, unbiased opinions to assist the court in achieving the overriding objective (cases to be dealt justly)
Their duty to the court takes precedence over any obligation to the party instructing them, and they must not advocate for one side.
What are the expert’s responsibilities regarding their area of expertise?
The expert must clearly define their area of expertise, notify the court and all parties if their opinion changes from the initial report or statement, and make it clear if a matter is outside their expertise
How does hearsay apply to expert witnesses?
Expert witnesses are allowed to rely on hearsay, such as the words, thoughts, and views of others (e.g., published material, research papers), as part of forming their opinion, unlike witnesses of fact.
