Expert Witnesses and Scientific Evidence in Court Martials - Assignment Example

Expert Witnesses and Scientific Evidence in Court Martials Synopsis The question of expert witness’ evidence and its relationship to the admissibility of an independent expert report in a court of law or other judicial forums has been the focus of a large academic analysis. It is in general acceptance that where pertinent to the determination of a factual issue that is in dispute, experts in the field should explain special areas of knowledge to the judges as such areas can be unfamiliar to the judges. This guarantees that they do not draw flawed conclusions from the proof before it and that the judges are equipped aptly to find out how much weight to bestow on the proof to which the knowledge relates. Introduction This paper discusses the admissibility of an independent expert report in a court of law or other judicial forums. It identifies and explains concerns or issues about the characteristics that a witness must possess in order for a court Royal Commission or other duplicate resolution forum to accept him or her as an expert. It also discusses the factors that mark an expert report as either admissible or inadmissible as evidence, the factors that make a witness and expert evidence credible and the factors that limit the credibility of a witness and/or expert evidence tendered. The paper meets its objectives by citing major cases and case laws, literature, judicial surveys among others. The expert witness An expert is one who concerning any question, is knowledgeable or experienced on that question in such a way that in evidence; his or her view would be admissible on that question. An expert witness therefore is an expert who in proceedings or proposed proceedings, gives opinion evidence or provides a report with regard to his or her opinion to act as evidence. If technical, scientific or other special line of knowledge will help the judge to determine a truth in issue or understand the evidence, a witness who qualifies as an expert through education, knowledge, training, experience or skill may give evidence thereto either in form of an opinion or otherwise (RichmondTrial Lawyer.com 2009). It is hackneyed law that witnesses who possess a relevant degree of expertise have the competency to give evidence on the factual matters lying within their specialty to offer assistance or guidance to the judges in their ruling of the factual issues in dispute. Indeed, the adduction of expert evidence is sometimes mandatory in criminal proceedings. The courts recognize experts per se either for the reason that they possess relevant qualifications professionally or due to their relevant practical experience, or for the reason that they possess both the aforementioned features. In child abuse cases, for example, particularly, rather than the expert just being qualified in a particular discipline, the court is likely to prefer sufficient practical experience by the expert in the area. Stratton (2007) explains that the main purpose of an expert witness is to help the jury to determine a fact or comprehend the evidence in issue. Theoretically, experts should simply educate the judges by passing on the pertinent aspects of their expertise in order that the judges can assess the evidence to which it relates properly. Nonetheless, where the field of expertise is particularly intricate for the judges to understand, the judges, when taking into consideration how to settle the factual issue that is in dispute, can defer to the specialist’s personal opinion and knowledge. This is an indication of how persuasive the opinion of an expert witness may be in relation to the assistance it can supply. The extent to which the evidence of the expert will be convincing and hence the probability that the judges will, without forming their own opinion, defer to the expert is certainly likely to be determined by the field’s intricacy. This is acceptable if the evidence of the expert is reliable because it would be impractical to supply the judges with their own enough expertise to shun the likelihood of deference. Characteristics of an expert witness In order for a court Royal Commission or other duplicate resolution forum to accept a witness as an expert, he or she must possess various characteristics. As mentioned earlier, a witness qualifies as an expert by skill, knowledge, education, training or experience. He or she should show degrees achieved from institutions of education and other specific training in the field. He or she should also possess a license to practice in the field. Some cases require him or her to have practiced for a long period. An expert witness should also prove membership in professional organizations, show his or her publications, previous testimonies and prizes or honors received. Other characteristics of an expert witness include honesty and impartiality. The expert must have complete candor and honesty in order that others will respect his or her opinions as being valid and relevant. He should also not be biased or inclined on one side for his or her own benefit. In addition, he should be independent in that his or her evidence should be and should be seen to be his or her independent product that is not influenced as to content or form by the litigation exigencies. Admissibility of an expert report as evidence The case law defining the admissibility standards of evidence and the role of trial judges in finding out whether an expert report is admissible as evidence has evolved significantly over the years. In 1923, the case Frye v. United States formalized a common law rule that required general acceptance of the principles underlying scientific proof so that it can be admissible. The Court apprehended that if based on a generally accepted and reliable scientific technique in the scientific community, only then could scientific evidence be admissible. The case led to the establishment of the Frye test, which involved the admissibility of opinion evidence. This was based on the employment of an early version of a lie detector or the Polygraph. Frye test The main purpose of this test was to spurn the use of evidence from controversial or much disputed scientific theories. Testimony of the expert was admissible on basis of the expert’s credentials, experience, skill and reputation. It was in the requisite of the test that scientific evidence that is admissible be a product of a theory that had obtained a general acceptance within the field of specialty or in scientific community. The court believed in the theory that cross-examination would uncover flaws or deficiencies that experts made in their conclusions. Ultimately, this view overwhelmed the majority to the extent that at least forty-five states adopted Frye as the controlling standard (Imwinkelried 1996). Nevertheless, this test faced the criticism that it usually results in uniform decisions concerning admissibility. Others argued that the proponents of the test assumed that the jury misunderstands the scientific process and that it is unable to assess scientific testimony. All the same, for almost three quarters of a century and until the coming of the Daubert law, the test reigned as the standard governing admissibility of scientific proof in the United States. The Daubert test Contrary to the principles of the Frye test, the decision of the Supreme Court of the U.S. in the 1993 case of Daubert v. Merrell Dow Pharmaceuticals did away with the need for a threshold standard of scientific reliability. Like the Frye test, the Daubert standard concerned the admissibility of testimony by expert witnesses during federal legal proceedings. The case involved the admissibility of novel scientific evidence. Under this standard, trial judges have an obligation of thoroughly analyzing evidence to find out whether it meets the Federal Rule of Evidence 702’s requirements (Sapir 2007). This rule states that if technical, scientific or other specialized knowledge will assist the jury to determine a fact in issue or understand the evidence, then a witness qualified as an expert by skill, experience, training, education or knowledge may testify thereto in an opinion form or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable methods and principles and the witness has applied the methods and principles reliably to the facts of the case (Gonzalez & Waddington 2006). Majority of federal civil cases that require expert testimony also include a motion in writing that challenges the evidence of an expert under Daubert. In order to exclude the presentation of unqualified evidence to judges, a Daubert motion is mounted prior to or during trial. This special case of motion helps the jury to exclude testimonies of expert witnesses who either obtain information using questionable methods or lack such expertise. Under Daubert, evidence based on scientific knowledge that is unusual or innovative may be admissible only after establishing that scientifically, the evidence is valid and reliable. The Court imposed a gate-keeping responsibility on trial judges. They were to prevent what the court termed as junk science from finding its way into the courtroom as evidence. Daubert standard, a two-pronged test of admissibility, requires trial judges to evaluate proffered expert witnesses to ensure that their testimonies are relevant and reliable. Relevant evidence is one that tends to prove or disprove a material fact. Except as provided by law, all relevant evidence is admissible. The jury, when assessing the relevance of a testimony, determines whether the specialist’s evidence matches the case’s facts. For example, one may call upon an astronomer to bear witness to the jury that on the night of a crime, it had been a full moon. The astronomer’s testimony however would be invalid if the issue at hand has no relevance to the fact that the moon was full. As such, the jury would deny him or her chance to testify. On the other hand, relevant evidence is inadmissible in a court of law if the danger of misleading the jury, unfair prejudice, needless presentation of cumulative evidence or confusion of issues substantially outweigh its probative value (Greenfield Belser Ltd 2009). During the evaluation of an expert witness’ testimony reliability, the judges determine whether he or she derived his or her inferences from the scientific method. Following the Daubert v. Merrell Dow Pharmaceuticals case, the Court outlined four general considerations. These include maintenance of principles concerning the court’s operations plus whether the technique or theory is generally acceptable in a relevant scientific community; publication and peer review; the existence of already known or potential error rate and lastly empirical testing where the technique or theory was required to be falsifiable, refutable and testable. In other words, the assessment of the scientific validity underlying the opinion of a witness involves taking into account whether the technique or theory in question is testable, has been subjected to publication or peer review, can be applied to the facts at issue properly and has an acceptable potential or known error rate. These reliability tests are what we now refer to as the Daubert test or factors. Although they were not meant to act as a checklist, courts apply these factors thus and if one of them is not met, the jury may find the testimony inadmissible (Gonzalez & Waddington 2006). Although trial judges have always had the right to eliminate inapt testimonies, before Daubert, trial courts frequently preferred permitting the jury to listen to both sides as they submitted their evidence. If evidence fails to meet the standard of relevancy and reliability, a Daubert motion disqualifies it. On introducing such evidence in another trial, it would likely receive a challenge. Even if a Daubert motion is not obligatory to other law courts, some jury, on finding something untrustworthy, may choose to follow that example. A dismissal of a piece of evidence as inadmissible by the Court of Appeals under Daubert would make the decision binding on district courts within that court's geographic jurisdiction. To include expert testimony based on technical and other specialized knowledge, the Supreme Court of the U.S. appreciably broadened the gate-keeping role of the trial courts and the Daubert test in 1999. Only when the criteria identified in Daubert are applicable in finding out the reliability of either the expert's conclusions or the underlying scientific technique can a trial court use them to meet its gate-keeping obligation. The Daubert gate-keeping function must go hand in hand with a case’s particular facts for it to be flexible. Currently, the Federal Rules of Evidence have greater precedence over Frye's common law rule. All federal courts and most jurisdictions in the U.S. use some version of the Daubert standard. The fact that this legal decision delineated several factors that one can consider during the assessment of the admissibility of an opinion makes it notable. The basis of expert evidence under Daubert must include information based on scientifically valid methodology or reasoning, information that was acquired through sound scientific techniques and one that is reliable. Reminiscent of Frye, the level at which experts in the field accept the methods and peer reviewers’ approval may as well be considerations while evaluating the opinion’s scientific validity. In simple terms, Daubert encourages courts to ask experts two questions the first one being why the court should believe him or her and secondly, why it should care. The first question speaks to the reliability, validity and credibility of opinions of the experts and the logic and facts upon which they base them. The second question on the other hand speaks to the relevance of the opinions that the specific questions at bar will be offered. In tandem with suitable practitioners and judiciary training, a Daubert test offers the best method of shunning unreliable expert witness’ evidence from criminal proceedings (Hand 2009). Factors that mark an expert report as admissible or inadmissible as evidence For it to be tendered as evidence at the trial, the expert witness must sign his or her report and must include the certification. It must also set out the name and address of the expert, the instructions that the expert has received concerning the proceeding, the nature of every subject the opinion relates to in the proceeding and the opinion being sought. An expert witness’ report must specify the expert’s qualifications, that the issue in question falls outside his or her expertise field if applicable, any materials or literature he or she utilized in the support of his or her opinions, tests, examinations or other investigations he or she has relied on. It must also specify the assumptions, matters and facts on which he or she has based the opinions in the report. In addition, he or she must express the reasons for each opinion. Another factor that marks an expert report as admissible or inadmissible as evidence is proper subject matter. In relation to this, the jury looks out for the helpfulness of the report. If expert testimony will assist the jury, it is admissible and vice versa. An expert’s testimony may assist in two primary ways: it can explain complex matters, for instance information that is extremely technical or scientific evidence that the jury could not comprehend without the assistance of an expert. It can also help in explaining evidence that is apparently ordinary and that may have unusual applications. In an example of a case United States v. Hall, 165 F.3d 1095 (7th Cir. 1999), 7th Circuit maintained that in refusing to include the defense expert on eyewitness identification, the fact finder did not misuse his discretion. Apart from meeting Daubert’s reliability prong, the evidence must also meet the helpfulness prong. In this case, the judge rightly gave a ruling that such testimony was not beyond the knowledge of lay judges thus expert opinion testimony was not necessary. In another case – United States v. Dimberio, 52 M.J. 550 (A.F. Ct. Crim. App. 1999), the military judge refused to include the testimony of a defense expert who would give evidence about the mental problems and alcoholism of the wife of the accused. Arguing that there was no link between these problems and the wife’s alleged violence, the Air Force court avowed and maintained that this proof was irrelevant. The court termed this testimony as profile evidence that is impermissible. If a report lacks foundation, authenticity and is based on hearsay, it cannot be admissible in a court of law (Aleksy, 2009). Credibility of an expert witness Research on the social psychology of persuasion has constantly revealed that three main factors underlie credibility. These include dynamism, trustworthiness and expertise – how expert the court perceives the witness. Dynamism concerns the non-verbal presentation style evident in an expert when providing his or her testimony. Trustworthiness has to do with the degree of confidence that the jury places in the expert witness and his or her testimony, opinions and motivations. It has a close connection to a judge’s conviction that a witness will simply tell the truth and that he or she will base his or her assertions on valid information. Once they suspect insincerity on the source of the communication, the judges compromise the witness as a trustworthy source. Consequently, it is virtually not possible for an expert witness to be completely credible. Lawlink.nsw (2005) asserts that an expert witness stands financial gain by giving favorable evidence. As a result, judges will always have a jaundiced view of the expert witness’ trustworthiness as long as he or she is receiving payment for his or her time and is presenting his or her opinions in favor of the party that is paying him or her. In Australia, professional Codes of Ethics require expert witnesses to disclose fully any fee arrangement. Failure to adhere to this questions the expert witness’ objectivity and independence.  This is because some people arrange to delay paying the expert witness until after the court hands down its decision. Juries believe that an expert’s primary duty is to the court hence a witness is more credible if he or she presents opinions that counter his or her best interests. Apart from the fact that an expert witness should be unabashed about receiving payment for his or her time, other ways that increase his or her perceived trustworthiness are that he or she should demonstrate some fervor about the topic without appearing as a proselyte and that he or she should have impressive credentials. In addition, if the judges believe that numerous respected individuals and organizations share the expert witness’ position, they will consider that position more credible with the argument that if everybody believes it, then it must be right. Expertise, in the context of expert witness testimony, refers to the formal aspects of training like clinical and academic training, positions that the expert witness holds, professional accolades he or she has received and experience. On perceiving a witness as expert, the jurors believe that he or she understands what he or she is saying. Judges believe that such a witness has legitimate credentials and command of his or her subject matter (The Gale Group 2008). We cannot overstate the significance of credibility. In fact, to diminish its worth, credibility needs to be impeached just once. Expert witnesses therefore need to pay careful attention to not only cultivating credibility but also maintaining it because although they achieve it through years of education, preparation and experience, they can easily destroy it, for instance, when caught in a lie (Greenfield Belser Ltd 2009). Conclusion In litigation, the expert witness assists the jury in administering justice by providing information or an opinion based on his or her competence in a subject. The court therefore should not expect the right answer when the expert testifies on contentious and difficult issues; the expectation however, is that he or she will offer an informed opinion, which will help the court to draw its own conclusions. Before approving an expert witness’ opinion as admissible, the court should ensure that the opinion includes all relevant matters, is based on his or her area of competence and that he or she is dispassionate and impartial.  References Aleksy, E R 2008, Is an IME report admissible? Greaney & its aftermath, viewed 14 September 2009, < http://www.wcla.info/MCLE/mcle_present_certs/WCLA_MCLE_5-29-08.ppt.>. Gonzalez & Waddington, 2006, Expert witnesses and scientific evidence in court martials: Testimony by experts, viewed 14 September 2009, . Greenfield Belser Ltd, 2009, Witness credibility: How important is it?, viewed 14 September 2009, . Hand, D 2008, The admissibility of expert evidence in criminal proceedings in England and Wales, viewed 14 September 2009, . Imwinkelried, E J 1996, Admissibility of nonscientific expert testimony, viewed 14 September 2009, . Lawlink.nsw, 2005, Report 109 (2005) - Expert witnesses, viewed 14 September 2009, http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_R109toc>. RichmondTrial Lawyer.com 2009, Trial terms and definitions, viewed 14 September 2009, . Sapir, G L 2007, Qualifying the expert witness, viewed 14 September 2009, . Stratton, B 2007, Expert evidence in patent cases, viewed 14 September 2009, . The Gale Group, 2008, On being an expert witness: it's not about you, viewed 14 September 2009, . Read More