The Opinion Rule Flashcards
S23 EA 06 The opinion rule
A statement of an opinion is not admissible in a proceeding, except as provided by section 24 or 25.
Define Opinion within this act.
The Act defines “opinion” as “a statement of opinion that tends to prove or disprove a fact”
Outline the justification to why opinions may not be admissible.
where a witness offers a bare opinion, it holds little probative weight
* there is a danger that a witness offering opinion evidence will “usurp” the function of the tribunal of fact, which is to draw the necessary inferences from the facts presented in evidence. The opinion evidence could confuse the tribunal of fact and prolong proceedings.
* a witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible (for example, where an opinion is based largely on propensity evidence).
S24 EA 06 General admissibility of opinions (Non expert opinion evidence)
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.
Under S24 EA 06 what 2 criteria must be fulfilled for opinion to be admissible
opinion must be the only way in which to effectively communicate the information to the finder of fact,
* the witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.
S25 EA 06 Admissibility of expert opinion evidence
(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.
(2) An opinion by an expert is not inadmissible simply because it is about—
(a) an ultimate issue to be determined in a proceeding; or
(b) a matter of common knowledge.
(3) If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding.
(4) If expert evidence about the sanity of a person is based in whole or in part on a statement that the person made to the expert about the person’s state of mind, then—
(a) the statement of the person is admissible to establish the facts on which the expert’s opinion is based; and
(b) neither the hearsay rule nor the previous consistent statements rule applies to evidence of the statement made by the person.
(5) Subsection (3) is subject to subsection (4).
In order to comply with S25 EA 06 the opinion evidence must comply with the following
be that of an “expert”
* comprise “expert evidence”, and
* offer substantial help to the fact-finder in understanding other evidence or ascertaining any fact in the proceeding.
Define Expert S4 EA 06
Section 4 of the Act defines an “expert” as “a person who has specialised knowledge or skill based on training, study or experience”
The expert is required to demonstrate to the court that he or she has the requisite qualification to be deemed “expert” in the field in question; the expert may be qualified through formal study and training, from experience, or both. Evidence offered by an expert should be within his or her area of expertise
Define Substantial help in relation to expert evidence
The requirement of substantial helpfulness seeks to offer a “more rational test that assesses the reliability and value of the expert opinion on its merits”
What was found in case law B v R in relation to Substantial expert evidence and opinion.
Court in B v R held that it “necessitates consideration of an amalgam of relevance, reliability and probative value”.
Whats is R v Turner Evidence based on proven facts
“Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant ones into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination.”
S24(5) EA 06 Expert evidence about insanity
Section 25(4) provides for the admissibility of a person’s statement about his or her state of mind in order to establish the factual basis for the expert’s opinion on the sanity of that person.
Furthermore, the statements must be about the person’s state of mind, and so any statements informing the expert’s opinion made about other issues will not be covered by s25(4).
List what is required in relation to the conduct of experts and evidence
- an expert must state his or her qualifications when giving evidence
- the facts, matters and assumptions on which opinions are expressed must be stated explicitly
- the reasons for opinions given must be stated explicitly
- any literature or other material used or relied on to support opinions must be referred to by the expert
- the expert must not give opinion evidence outside his or her area of expertise
- if an expert witness believes that his or her evidence might be incomplete or inaccurate without some qualification, that qualification must be stated
- an expert has an overriding duty to assist the Court impartially on relevant matters within the expert’s area of expertise, and
- an expert is not an advocate for any party.
What is the NOTICE requirement when using an expert to give evidence.
The Criminal Disclosure Act 2008 introduced an obligation on the defence to give notice of expert evidence in criminal proceedings. Section 23 provides that, if the defendant intends to call an expert witness, he or she must disclose the brief of evidence or report (or a summary if no brief or report is yet available) at least 14 days before the date fixed for the trial.
