Selection, Role, and Responsibilities of Expert Witness in the English Criminal Justice System - Essay Example

?Selection, Role, and Responsibilities of Expert Witness in the English Criminal Justice System Module Module of Module of Student University of Central Lancashire Date Academic Year Introduction The chance of winning enlarges with the competent presentation of facts or evidence. The term ‘evidence’ is defined in the legal system as ‘information presented to a court to support or refute a case or a position in a lawsuit’.1 Evidence is crucial to the conclusion of a case, because juries give judgments on the basis of presented evidence. Nonetheless, not every piece of evidence in a case is presented to the adjudicators; just the evidence that is important and acceptable serves a function in the conclusion of a case. Hence, an expert is defined in the legal system as ‘a person who, by reason of education or special training, possesses knowledge of a particular subject area in greater depth than does the public at large’2. With the rising difficulty of cases, specifically those that involve technical or scientific issues, the expert witness has become crucial to litigation’s success. The Rule 702 states that experts have a substantial influence over usual witnesses due to the fact that they are “the only witnesses who are permitted to reflect, opine, and pontificate. Experts can provide a bridge between the particular facts of a case and patterns of fact that can be observed and understood only through much wider study”.3 In general, experts are perceived as favourable contributors in court trials. Nonetheless, experts can be at the same time described as ‘hired guns’ and ‘liars’.4 Regardless, one thing is for sure: the exploitation of experts is persistent. Indeed, experts have been equated to litigations. As stated by Robert R. Detlefsen, “The expert witness has become a fixture in high-stakes civil trials”.5 This is factual for a broad array of explanations, not the least of which is the growing difficulty of issues that comprise contemporary tort litigation and the continuously evolving procedures in the management of business processes: “the use of experts in courtroom trials is so prevalent today that the question confronting litigators is usually not whether to hire an expert witness, but rather how many to employ and where to find them.”6 Hence, this essay will discuss the selection, role, and responsibilities of the expert witness in the criminal justice system in the UK. Role of Expert Witnesses in the English Legal System Just as the essence or value of the testimony of an expert witness differs, so does the expert witness’s role in the legal system. In several instances, the expert witness is employed to discern issues or loopholes in the statement of fact witnesses. Expert statement, in other instances, is required to satisfy the ‘burden of proof’7 so as to create a defence or claim. Expert witnesses, occasionally, are used mainly to compete with the experts of the opposing side and to further strengthen the defence or claim of the proponent. Even though experts are generally determined by their role as witnesses at litigations or in deposition, they can help lawyers in the establishment of the case prior to trial as well. Lawyers may use experts to assess the work and official documents of other experts.8 Moreover, experts may help lawyers make sense of the technical features of a case by analysing documents and information generated by the parties and by studying and analysing subject matters in a case.9 Furthermore, experts can assist in the preparation of requests for information and documents which may turn into acceptable proofs, or they can formulate questions for cross-examination and direct questioning of witnesses.10 Expert recommendation may be crucial in strengthening the case prior to the trial by formulating compelling causation theories11 which should be presented to and reviewed by the jury. Another major role of expert witnesses may be to carry out trials linked to a component implication in the litigation and to formulate open evidence portraying their conclusions and the groundwork for them. This can be successfully carried out by thoroughly and extensively recording, documenting, and planning trials and experiments.12 Experts should be capable of justifying each step of the trial procedure to clarify how laboratory circumstances influence concrete conditions and evidence of the case.13 Rules of Evidence acknowledge two groups of witnesses. Fact witnesses, or more commonly referred to as lay witnesses, are called to give testimonies because they have heard, seen, or done something related to the conditions and evidence of the case.14 The statement of these witnesses helps directly the establishment of factual episodes. As defined previously, an expert witness is ‘a person who, by reasons of education or special training, possesses knowledge of a particular subject that may be beyond the understanding of the average person’.15 However, experts are not constantly needed. They are used in cases where in their expertise or knowledge is needed to explain complicated and/or technical evidence, or to give expert testimonies founded on the basis of their qualifications, experience, and knowledge.16 The role of expert witnesses is not restricted to their individual knowledge or expertise. Expert witnesses can make assumptions from commonplace scientific or business domains.17 They may be requested to give statements on the cause or outcome of events. They may even be asked to evaluate the behaviours of others and the effect of those behaviours on liability.18 The interpretations and testimonies of expert witnesses enhance the likelihood of reaching a just and reasonable resolution because expert witnesses are capable of elaborating or clarifying facts or evidence that may otherwise elude attention and observation.19 As an outcome, expert witnesses are most frequently questioned on the trustworthiness of their analyses or interpretations of the evidence and on the prejudice or impartiality of their statement.20 There are two kinds of experts, namely, testifying and consulting. The difference between the two is crucial because it has an effect on the revelation of procedures, ideas, and information.21 Consulting experts present background information and provide their knowledge outside litigation. A consulting expert is employed as an asset in scientific, technical, and complex areas where in attorneys have minimal knowledge, frequently guiding and teaching lawyers on unusual topics.22 In contrast, testifying experts transcend the assistance given by consulting experts and helping lawyers try a case by giving statements either in depositions or in court.23 The difference between a consulting expert and a testifying expert is relevant because the judgments and identity of testifying experts should be disclosed to the opposing side prior to the trial if appropriately requested.24 This implies that the opposing party will be given access to the experts and their documents and, hence, be more prepared and informed in their response. Due to the sharp disparities in guidelines between the two forms of experts, the activities of testifying experts and those of consulting experts must be differentiated and kept separated.25 Competent attorneys tactically balance the hiring of consulting and testifying experts in order to defend their cases. A Good and Bad Expert Witness There are four primary competencies that a good expert witness has, and that a bad expert witness is deficient of: (1) competence; (2) objectivity; (3) equality of resources; and (4) aptitude.26 These four skills that differentiate a good expert witness from a bad one are discussed in this section. Competence Evidence is at times provided by individuals whose level of knowledge or expertise, or whose capacity to use it, appears undesirably low.27 Several of the recent, and controversial, cases illustrate this. For instance, in the case of Birmingham Six28, Dr. Skuse, the forensic expert of the prosecution, did two consecutive trials for nytroglycerine on the suspects’ hands. The first test, a basic one, turned out negative for hands C,D,E,F, and so on, while positive for hands A and B.29 The second test, which was purportedly a thousand times more accurate, turned out positive for hand C while negative for hands A and B.30 Hence, reasonably, they contradicted or nullified one another: the only logical explanation was that both or either trials had gone wrong.31 But Dr. Skuse claimed that the initial trial made him moderately sure the suspects had been holding nitroglycerine; then the second trial, absolutely certain.32 This example of scientific incompetence was not discerned in court, and detected only in the Court of Appeal’s third trial.33 Basically, anyone can be an expert witness, as long as they possess important knowledge and expertise, and nothing whatever is carried out to make sure that only the most competent individuals are employed. To be permitted to provide expert testimony, witnesses should prove to the judge that they possess some relevant knowledge, experience, or some expert abilities.34 No minimum criteria are established. Outside this, the only trial is contesting the cross-examination of the counsel.35 A mechanism where in expert witnesses are selected by the parties has a natural inclination for the bad expert to be selected over the good one. From the perspective of the parties, the perfect expert witness is someone who ‘(i) is confident and certain, and (ii) will stick to his conclusions under cross-examination, and (iii) will create a good impression on the jury’ (Faculty of Laws 59)36 However, the value of good science is non-judgmental attitude: ‘the more certain he is, and the less willing to concede the possibility that his own view may be wrong, the more incompetent he is likely to be as a scientist’37, as well as the capability of convincing a jury, and to contesting conventional cross-examination. Objectivity Another issue is that a considerable degree of the expert testimony the UK legal system hears is untrustworthy through prejudice. The first principle of scientific method is to review all the information and evidence objectively and to pursue the truth.38 Primarily, the expert will normally have been chosen not because s/he is competent in his/her work, but because s/he is believed to be eager to give the testimony what the party hiring him/her wants to be presented to the court.39 In instances where the expert is someone of reputation, and attempts to be objective, the fact that s/he has been used by one party can still have a deforming impact upon his/her testimony.40 As remarked by a Scottish legal author: There is perhaps, no kind of testimony more subject to bias in favour of the adducer than that of skilled witnesses; for many men, who would not knowingly misstate a simple fact, can accommodate their opinions to the wishes of their employers, and the connection between them tends to warp the judgment of the witnesses without their being conscious of it.41 The same above statements has been stated by scientists. Even if the truthful expert witness can overcome unintentional prejudice, there are still dilemmas. S/he is still the prisoner of the party that orders him/her, and they may have given him/her facts or data that is incomplete or subjective.42 Another problem is that expert will not be allowed to notify the court his/her assumptions in the manner s/he wants to inform them, but will be inspected by counsels43, who will try to get what s/he wants from him. Equality of Privileges Another problem with the current arrangements is inequity in terms of privileges. Theoretically each party has equal rights to use its expert witnesses; however, in practice, their privileges are not equal, and at times the defence is incapable of using an expert witness at all.44 It is frequently argued that if legal assistance were more open-handed this dilemma would then be resolved. However, it is not as easy as this to attain equality of opportunities. Although money to afford the defence expert witness is obtainable, in the condition of things it may not be plausible anymore for the expert to give any helpful testimony. The issue to be examined may have declined with time, or the trials that the experts of the prosecution have carried out may render additional trials unfeasible.45 A basic illustration is the case DPP v. British Telecommunications46, in which the procedure of checking a crashed vehicle’s brakes, the vehicle expert of the prosecution had to change the adjustment of the brakes to verify its effect to their performance. This action placed the defence in a weak position to dispute what the expert of the prosecution stated. Due to this the court magistrates refuted the testimony of the prosecution expert, bringing into play the Police and Criminal Evidence Act 1984’s section 7847 to prohibit evidence that renders the litigation unjust. However, the Divisional Court, identifying the repercussions of this for the criminal justice system in general, decided that they should have allowed it.48 Frequently, the most that an expert of a defence party can do is to find loopholes in the decisions or actions that the prosecution expert has created. Aptitude Another protest to the current process of expert witnesses in the UK legal system is ineptitude. As a way of using the expertise of scientist in court, verifying its reliability, and assisting the court in using it in a prudent way, it works poorly.49 To verify the reliability of expert testimony the English legal system makes use of the conventional in-court cross-examination.50 In the point of view of English lawyers, its success is a matter of conviction: ‘We doubt whether there is a better way of exposing the weaknesses in the prosecution case, whether the witness be a policeman, a scientist or a bystander, than by cross-examination’51, stated by the Court of Appeal in the last trial of the Birmingham Six52 case. However, there are valid reasons to question whether it is actually an efficient and excellent technique of revealing the limitations of expert witness53, specifically that of scientists. In the case of Thorne54, the expert of the prosecution testified the deceased had killed his former girlfriend while the defence expert suggested that she had committed suicide. In eliminating the proposition of the defendant that the Court of Criminal Appeal may provide leave to appeal, and wield its authority to resolve the dispute of expert testimony by hiring a scientific evaluator, Lord Hewart, CJ stated55: There is no ground whatever for suggesting that, in the present case, the jury failed to appreciate, or would not be likely to have the capacity to discriminate between, the conflicting views placed before them on the medical and surgical facts of the case.56 While Thorne was executed, it can only be trusted that the jury decided rightly. Responsibility of an Expert Witness The notion of witness protection came from English common law to promote truthful and open testimony devoid of fear of retaliations or consequent proceedings on the basis of the testimony given.57 This premise was afterwards implemented by the judicial system in the United States. Maintenance of witness protection has been quite vital that it has been sustained even in instances where a witness was capably inattentive or reckless, as shown in the judgment of the Texas Appeals Court in the Clarke v. Grigson58 case. The Court declared “that no civil liability exists on the part of an expert witness who forms an opinion and states that opinion in the course of his testimony in a judicial proceeding, even though he may have been negligent in the process”.59 Although there is standard and support for witness protection, there is also an increasing preference for enhanced responsibility of experts, largely as an outcome of the remarkable rise of expert evidence in tort proceedings over the recent decades.60 Expert responsibility is essential because hired experts influence adjudicators. Definite processes integrated into the English legal system guarantee precise and truthful expert evidence61; nevertheless, the success of these processes is questioned in view of the condition of expert evidence in contemporary tort litigation. The most apparent of the general processes is cross-examination.62 In theory, the cross-examining lawyer has two chances to question an expert’s statement. One of these prospects manifests itself in the case of Daubert63, where the intention is to question the technique used by the expert. The other prospect is, obviously, at some point in the cross-examination.64 Not like the case of Daubert, where the methodology of the expert is under consideration, cross-examination at trial is mostly intended for either prosecuting the reliability of the witness or bringing the facts and assumptions of the expert into disrepute.65 Nevertheless, majority of cross-examining lawyers are poorly equipped to sufficiently weaken a reliable and well-informed expert witness, not through absence of knowledge but instead because of the absence of technical, medical, or scientific training and knowledge.66 Experienced and trained experts are knowledgeable of the legal system, the purpose of cross-examination, and the relevance of the findings and evidence in a case. Grounded on this extent of knowledge, a skilled expert normally stays consistent, focused, and composed under cross-examination.67 The repercussions are apparent. A person who embarks on expert witness function without having proper training, experience, and education and who does not know the norms of forensic evidence, testimony may be exposed to an observation that s/he carried out the work recklessly and was accountable for any adverse decision. Qualification of Expert Witness Irrespective of the interpretation or application of the case of Daubert, its effect on the process of expert witnessing has been substantial. Daubert obliged that juries become active users of science.68 This condition includes both expert witnesses and lawyers. Expert witnesses have become competition in the contemporary English courtroom, engaged in almost all tort cases filed.69 Due to the fact that the conclusion of a case relies on the articulacy or persuasiveness of expert evidence, the selection, training and staging of experts are crucially vital for successful court trial.70 The selection of an expert calls for attention on the following: (1) Qualification. First and foremost, an expert must be able to demonstrate specialised skill or knowledge acquired through an appropriate mix of experience or education. Recognised expertise in the subject can be credibly substantiated by the authoring of peer-reviewed papers and books, recognition by peers for contributions to the field over an extended period of time, or other relevant activities recognised and accepted by other experts in the field;71 and (2) Ability to Communicate. To be effective, an expert witness must have the ability to clearly and persuasively explain and communicate complex theories and results through explanation, simplification, and clarification, and by giving examples and analogies.72 Most definitely, expert evidence should satisfy the Daubert criteria for relevance and credibility.73 Nevertheless, in disputed cases, the technical or scientific evidence are often seriously complicated to untangle. If the technical or scientific evidence were apparent, the case would more than probably have been resolved with ease. Without the evidence, experts should make logical theories and manipulate evidence upon which to root their assumptions and analyses. Experts should methodically analyse and take into account the Daubert variables when making their judgments. In addition, the testimony and account of the expert, whether in a pretrial proceeding or in a deposition, should vividly and openly include how the expert has satisfied each of the suitable factors.74 Furthermore, experts should apply theories that have critical relevance. Experts should make use of literature, ideally those which are peer-reviewed, substantiating their judgments or assumptions and showing that their views are grounded scientifically, instead of being subjective.75 Daubert enables resilience or adjustability in identifying the credibility and importance of expert evidence but at the same time gives the groundwork for questioning the support and justification of the same expert evidence. Conclusions In numerous instances, the future seems good. Intelligent minds from prominent law schools are growing in abundance, generating the prospect for more court cases. The condition of lawsuits is more intricate because of society’s dependence on scientific and technological skills. Governmental policies in the domains of environment, safety, and health are more abundant. These developments imply that experts will be depended upon with larger regularity in the foreseeable future. Certainly, the business of expert witnessing is a progressive enterprise. An expert witness has extensive responsibility. S/he should recognise his/her major contribution to the case. S/he should also recognise that s/he embody the profession and related expert groups. It is vital that s/he behave or carry him/herself in an extremely ethical and professional way. The most useful or vital recommendation for expert witnesses is to directly and plainly tell the truth. This should not be exaggerated. However, there is more to the art of being an expert witness than merely telling the truth. A lot of experts consent to defend a case without completely knowing the amount of time needed to carry out the task ethically. If an expert is not eager to work dedicatedly and sincerely on the case and to invest effort and time needed for the task, s/he should not accept the job. To agree under such conditions is an obvious violation of ethics in almost any profession or discipline. Experts are ethically obliged to be completely open with their attorneys on the formation of their judgments. The lawyer has to formulate tactics and methods to contend with the limitations of the case that experts discern. Apparently, the lawyer is the representative of his/her client and hence will desire an expert to give a testimony that most compellingly substantiates the case. At this point, most ethical problems emerge. Questions, such as should expert witness disclose limitations in the courtroom as a way of his/her impartiality, have to be answered. Definitely, experts should never breach the ethical and professional limitation of giving assumptions that are not theirs or that they do not trust, but should experts hold back sentiments or judgments that are unfavourable to ‘their’ party? Normally, this problem can be mitigated through direct analysis. The lawyer raises questions regarding the limitations in order for the expert to have the chance, under a favourable condition, to clarify how the limitations were addressed in the assumption and judgment. The worse scenario is when the limitations are quite serious that they are capably overwhelming for the client. In that case, the expert and his/her lawyer have to make a decision whether or not it is sensible for him/her to give evidence at all. If the limitations are not exposed at some point in the direct examination, they definitely will be subjected to cross-examination. At this point, the expert loses a significant amount of control. S/he should be careful of framing his/her opinions and clarify his/her judgments. Ultimately, it is essential to clarify for an expert that s/he is being remunerated for the effort and time to give evidence, not for the evidence. If an expert is prominent for his/her truthfulness and impartiality as an expert, s/he can be of tremendous use in assisting lawyers in successfully resolving or settling a case. The most imperative responsibility of an expert witness is to answer all questions or confront issues with impartiality, detachment, and morals. Read More