Unit 16 Opinion Evidence, Experts and Privilege Flashcards
What is the general rule for witness evidence?
The general rule is that witnesses may only give evidence of facts they personally perceived and not evidence of their opinion, i.e. evidence of inferences drawn from such facts.
What are the two exceptions to the general rule?
(The general rule is that witnesses may only give evidence of facts they personally perceived and not evidence of their opinion, i.e. evidence of inferences drawn from such facts.)
There are two exceptions to the general rule:
a. Non-experts. A statement of opinion on any matter not calling for expertise, if made by a witness as a way of conveying relevant facts personally perceived by him or her, is admissible as evidence of what the witness perceived.
b. Experts. Subject to compliance with CrimPR Part 19 (expert evidence), a statement of opinion on any relevant matter calling for expertise may be made by a witness qualified to give such an expert opinion.
May expert evidence by accompanied by animations?
Yes, where appropriate to illustrate the opinion.
If there is an objection as to the admissibility of expert opinion evidence, who must prove its admissibility?
If objection to the admissibility of expert opinion evidence is made, it is for the party proffering the evidence to prove its admissibility.
Will judge’s allow expert opinion evidence?
Unless the admissibility is challenged, the judge will admit the evidence as sufficient safeguards are provided by the rules on pre-trial disclosure.
Is Non-Expert Opinion Evidence allowed?
A statement of opinion may be given by a witness, on a matter not calling for expertise, as a compendious means of conveying facts perceived by the witness.
Thus an identification witness is not required to give a description of the offender or some other person, leaving it to the tribunal of fact to decide whether that description fits the accused or other person identified, but may express an opinion that the accused (or other person) is the person the witness saw on the occasion in question. Likewise, a non-expert may give evidence of opinion to identify an object (e.g. a picture), handwriting with which he or she is familiar, or a voice which he or she recognises or with which he or she is familiar.
What can non-experts give opinion evidence on? (examples)
A non-expert may give evidence of opinion to identify a person, an object (e.g. a picture), handwriting with which he or she is familiar, or a voice which he or she recognises or with which he or she is familiar, evidence of a person’s age, of the general appearance of the person’s state of health, mind or emotion; the speed of a vehicle; the state of the weather; the passage of time.
Is scientific evidence required to identify a prohibited drug?
Although scientific evidence is not always required to identify a prohibited drug, police officers’ descriptions of a drug must be sufficient to justify the inference that it was the drug alleged
Give an example of statute prescribing the qualifications of an expert witness.
A jury shall not acquit on the ground of insanity, except on the evidence of two or more registered medical practitioners, at least one of whom is approved by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder.
What is the duty of those instructing expert witnesses?
Those instructing expert witnesses should satisfy themselves as to their expertise and engage an expert of suitable calibre.
What is the court’s duty when expert witnesses are instructed?
Whether a witness is properly qualified in the subject calling for expertise is ultimately a question for the court. Courts need to be scrupulous to ensure that evidence proffered as expert evidence is based upon specialised experience, knowledge or study: mere self-certification is insufficient.
Is a police officer competent to give expert evidence of the practices and associations of gangs if admissible as bad character evidence?
Yes if the officer has made a sufficient study, whether by formal training or through practical experience, to acquire a balanced body of specialised knowledge not available to the jury; simple, and not necessarily balanced, anecdotal experience will not suffice.
What matters call for expert evidence?
Expert opinion evidence may only be received on a subject calling for expertise, which a lay person, such as a magistrate or a juror, could not be expected to possess to a degree sufficient to understand the evidence given in the case unaided. If the tribunal of fact can form its own opinion without the assistance of an expert, the matter being within its own experience and knowledge, expert opinion evidence is inadmissible because it is unnecessary.
Can counsellor’s give evidence about recent clients?
Counsellors may give non-expert evidence as to recent complaint, i.e. evidence of fact that a complaint was made at the time of the events or shortly thereafter, provided that the judge makes plain to the jury that it is not evidence of the truth of the complaint.
If there were obvious signs of distress when the complaint was made, evidence of such demeanour may also be given. A counsellor may not express any views as to the truth or otherwise of the allegations or the reliability of the complainant. Nor should a counsellor use over-emotive language. A counsellor should use objective language and avoid saying anything that can be construed as subjective comment or a statement of personal opinion.
What is the duty of an expert witness?
An expert must help the court to achieve the overriding objective by giving objective, unbiased opinion on matters within his or her area or areas of expertise and by actively assisting the court in fulfilling its duty of case management. This duty overrides any obligation to the person instructing the expert or by whom the expert is paid; and this duty includes an obligation:
a. to define his or her area or areas of expertise in the report and when giving evidence,
b. when giving evidence, to draw the court’s attention to any question to which the answer would be outside the expert’s area or areas of expertise, and
c. to inform all parties and the court if his or her opinion changes from that contained in a report served as evidence or given in a statement.
Are the jury bound by the opinion of an expert?
it is a misdirection, therefore, to tell the jury that expert evidence should be accepted if uncontradicted.
When expert evidence is given on an ultimate issue, it should be made clear to the jury that they are not bound by the opinion, and that the issue is for them to, but there is no requirement that such a warning be conveyed in any particular way.
Where there is simply no rational or proper basis for departing from uncontradicted and unchallenged expert evidence then juries may not do so. A direction of the following kind can be made:
‘Where, as here, there is no dispute about findings made by an expert you would no doubt wish to give effect to them, although you are not bound to do so if you see good reason to reject them.’
What is the principle regarding expert evidence and diminished responsibility (murder)?
Two clear principles emerged from the cases, on the issue of diminished responsibility:
a. if there were no other circumstances to consider, unequivocal, uncontradicted medical evidence favourable to an accused should be accepted by a jury and they should be so directed; and
b. where there were other circumstances to consider, the medical evidence, though it be unequivocal and uncontradicted, must be assessed in the light of the other circumstances.
What are the two main types of privilege in criminal proceedings?
Privilege against self-incrimination or legal professional privilege
What are the general principles of privilege?
a. A person entitled to claim privilege may refuse to answer the question put or disclose the document sought. The judge should not balance the claim to privilege against the importance of the evidence in relation to the trial.
b. If a person entitled to claim privilege fails to do so or waives the privilege, no other person may object. The privilege is that of the witness, and neither party can take advantage from it.
c. A party seeking to prove a particular matter in relation to which his or her opponent or a witness claims privilege, is entitled to prove the matter by other evidence.
d. No adverse inferences may be drawn against a party or witness claiming privilege.
e. A claim to privilege falls to be determined in accordance with domestic law and therefore cannot succeed simply on the basis that it would succeed in some other jurisdiction.
Can a third party make a claim to exercise privilege? (read)
If a judge improperly rejects a claim to privilege made by a witness who is not a party to the proceedings, no appeal will lie, for there has been no infringement of the rights of the parties. In Kinglake (1870) 11 Cox CC 499, where a claim to privilege made by a prosecution witness on the basis that his evidence would tend to incriminate himself was overruled by the judge, it was not open to D to object that the witness’s evidence had been improperly admitted.
What is the scope of the privilege against self-incrimination?
‘a person charged in criminal proceedings who is called as a witness in the proceedings may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to any offence with which he is charged in the proceedings’. Subject to s. 1(2), no witness is bound to answer questions in court (or to produce documents or things at trial) if to do so would, in the opinion of the judge, have a tendency to expose the witness to any criminal charge, penalty or forfeiture (of property) which the judge regards as reasonably likely to be preferred or sued for.
Can the court order additional measures be put in place so that the privilege against self-incrimination can be waived?
The courts may substitute a different protection in place of the privilege when requiring a person to comply with a disclosure order, provided adequate protection is available, as when the prosecuting authorities unequivocally agree not to make use of the information.
Is exposure to CIVIL liability included in the privilege against the self-incrimination?
No. A witness may not claim privilege on the basis that his or her answer to the question put would expose him or her to civil liability. Nor does the privilege extend to answers which would expose the witness to criminal liability under foreign law.
Can a party claim privilege to prevent them incriminating a spouse?
No, the incrimination must be of the person claiming the privilege. A wife called to give evidence against their husband, cannot then claim privilege instead of giving answers.