Role, Responsibilities, and Independence of an Expert Witness in the English Legal System - Assignment Example

Qualification, Role, Responsibilities, and Independence of an Expert Witness, in the English Legal System Introduction The English and Walsh legal system has undergone several developments in the past. Currently, the English Walsh legal system operates under common law after departing from the initial strong dictatorial centralized authority. Research indicates that the common law system came into operation in 1215 following the signing of Magna Carta by King John (Beran 2009, p. 133). Since King John enjoyed the imperial and centralized authority, the English people had to compel him to sign the Magna Carta into law, thereby ushering in the common law system that the English and Welsh legal system have stuck with since then. The English and Welsh people favoured the common law system since it ensured the creation of a government that abides by the laws of the land. Under the English common law system, law limits the powers of the government. This implies that the government cannot do something that is ultra vires. Today, most countries have adopted the English common law system. However, some countries operate under civil law system. England and Wales are among the countries that operate under the common law system. The common law system operates under the adversarial system, which pertains to how judges adjudicate cases (GMC2008, p. 12). This system is quite different with the civil law system adopted by most other European countries. The difference between civil and common-law systems is seen as regards the requirements and circumstances under which an expert witness may be required. Under the English common law system, an expert witness may be called upon in any field, such as forensic investigation to assist the jury handling the matter in interpretation and understanding of the evidence produced in court. This practice is quite different from that adopted in many European countries that operate under the civil law system. Slapper, and Kelly (2009, p. 49) note that in most European countries operating under civil law system, the judges are the ones mandated to bring an expert witness. Today, an expert witness plays a critical role under the Walsh and English jurisprudence. Expert witnesses in these two British member states help courts in interpreting, as well as providing testimonies on scientific matters that require expert advice. Such expert testimonies help courts in understanding the case in order to make a fair judgment (GMC2008, p. 16). Some of the areas where expert witness may be needed include cases that require forensic investigations involving DNA, chemistry and document analysis. Circumstances where an expert witness is admissible under the English and Walsh legal system As earlier stated, a witness usually plays an important role in any case, be it civil or criminal case. Normally, in order for the court to convict an accused person for an offense, the plaintiff or the complainant must prove his case beyond a reasonable doubt. However, in most cases, a witness testimony is usually needed to help prove the case. Witnesses are of two types, namely ordinary and expert witness. Under normal circumstances, an ordinary witness is required under the English and Walsh legal system to give testimonies that has to do with matters of fact, which he or she is knowledgeable (Gabbay 1990, p. 38). Contrary to this, the opinion of an expert witness in the matters under investigations is admissible where the court require such expert advice to assist the jury to interpret cases that are technical and scientific in nature, which the jury may not have proper knowledge and experience. For instance, forensic evidence usually require the services a forensic expert to interpret the DNA findings and other scientific documentations to help the jury understand the case and give unbiased opinion (Langbein 2003, p. 99). In a murder case, for instance, the services of a forensic expert may be required to help establish the identity of the murderer. In this regard, the services of a forensic expert may be required to provide an expert advice to the jury in understanding and interpreting the case. However, in circumstances where the English and Walsh juries are able to reach their own conclusions, without necessarily in need of assistance, then the expert witness or the evidence of a skilled witness becomes inadmissible. However, in circumstances where the jury lacks knowledge or experience regarding a given matter, then the evidence or testimony given by an expert witness becomes admissible under the Walsh and English legal system, according to Gabbay (1990, p. 43). Nonetheless, in the event that a conflicting expert opinion has been provided in the court of law, then the jury is mandated by the law to choose the evidence, which they deem appropriate (Woolf and Great Britain 1996, p. 54). In this regard, it is worth noting that Walsh and English courts do not accept expert opinion on matters of law merely because the opinion might be useful. Rather, the evidence must also be beyond reproach. Duties and Responsibilities of an expert witness Expert witnesses play a critical function in the English and Walsh legal system by ensuring that justice is served to the people. Under the English and Walsh common law system, the main responsibility of an expert witness is to offer expert advice to the jury on technical and scientific matters that are beyond their knowledge and experience. This implies that, regardless of how knowledgeable an expert witness may be, his main function is only to provide evidence that can help the jury in deciding a case that has technicalities (Roberts 1993, p. 112). As such, the law prevents them from acting ultra vires by usurping the roles of the jury sitting to decide a case. As experts, they are required by law to provide juries with crucial scientific criteria used for determining the accuracy of their opinions in order to form their personal and independent judgment by using the principle to the facts confirmed in evidence. The use of expert witness is not something new in England and Walsh, rather its use date back to the medieval era. During the 14th century, courts would sometimes seek the opinion of surgeons on whether a wound is fresh or not. This helped courts in understanding the case in order to give an impartial and just ruling. Experts witness still performs a crucial role in the English and Wash legal system. In this regard, they perform the duty of educating courts on legal matters that falls within their expertise (Law Reform Commission 2005). As the legal adviser of courts, they are required to provide the courts with an honest and impartial opinion on matters that the jury has no proper knowledge or experience. For instance, in case where an expert is sought to investigate a murder case, the expert witness must conduct a scientific research by taking DNA samples to unearth the identity of the culprit. The expert witness is then required by the common law system to furnish courts with all the evidences and interpretations of the findings that might help them in deciding the case. However, since their opinions are critical and may be used to convict an individual, they are expected to act with honesty and impartiality (McEwan 1998, p. 9). As such, the law does not require an expert witness to make reservations on matters, which are important in deciding a case simply because the jury has not asked for such information. Rather an expert witness is under duty to volunteer all relevant information required in order for the jury to make accurate and unbiased ruling. Failure to provide relevant information needed might leave the jury with a deceptive impression of his entire opinion regarding the matter. It is worth noting that courts are very careful when choosing the expert opinions to rely on when arriving at a decision. In this regard, an expert witness is require by the English and Walsh common law to present only the expert evidence that falls within his or her area of expertise (Langbein 2003, p. 101). For instance, where forensic evidence is required to prove a given case, the courts would only rely on the opinions of experts in the field of forensic investigations. This is to ensure the credibility of the evidence, which results in a just and impartial decision. Since the opinions expressed by an expert witness is very crucial in arriving at a decision by courts, the English and Walsh legal system require expert witnesses to give unbiased an independent decisions (Roberts 1993, p. 86). In this regard, an expert witness must ensure that his decisions are not compromised by the client or any other person with an interest in the case. Rather, they are expected form their own independent decisions based on actual knowledge and experience. In addition, the sources of information that they provide to courts must be identifiable as proof and credibility. In providing expert advice to the jury, an expert witness is required by law to state the assumption and facts that he or she has used to arrive at the opinion. The law expects expert witnesses to provide such assumptions and fact to help judges decide whether the opinion given by an expert witness is credible and does not deviate from the law (McEwan 1998, p. 14). At the same time, an expert witness must ensure that no material facts that are likely deviate from his opinion. An expert witness is also required by law to inform courts when a particular issue that he or she is expected to provide opinion fall outside his or her expertise. In some instances, the court may require an expert witness to provide an opinion on an issue that it think need interpretation and understanding (Skellern 2008, p. 736). However, in case it turns out that the issue falls outside the expertise of the person appointed, then, the person has the duty to inform the court that the matter at hand falls outside his expertise. This is important since it ensures that only the issue under investigation is assigned to a person with the skills and experience in handling such matters. Apart from the fact that an expert witness has the responsibility of informing courts that a matter falls outside their expertise, courts also must ensure that expert opinion or evidences are confined to issue that are required to solve a given case. In this regard, expert evidence is admissible in court only after the jury has issued a written or orally permission allowing an expert witness to provide evidence. Under the English common law, it is very rare for an expert witness to be allowed to give an oral testimony. Oral evidences may only be allowed under exceptional circumstances that the courts deem necessary. It is a requirement under the English common law that expert witnesses provide their evidences in the form of a written report, indicating the experts’ qualifications, experience, the literature relied on in coming up with the conclusions, as wells as reasons for making arriving at an opinion (Law Reform Commission 2005). In addition, the report must also contain all the material facts regarding the opinion. Further, the report must also be accompanied with a declaration that the report is factual and is based on absolute truth. Such declarations are necessary to ensure accountability and the attainment of high standards. Qualifications of an expert witness Beran (2009, p. 136) notes that the Walsh and English legal system does not provide clear rules as to who may be give evidence as an expert under the court of law. In most cases, the question as to whether a witness is competent enough to testify in a court of law is for the jury to decide. In most cases, before an individual can testify as an expert witness, courts usually conduct a cross-examination on the academic qualifications and experience regarding the matter at hand. As such, for a person to be appointed as an expert witness, he or she must demonstrate that he or she is qualified academically and has enough experience in the matter before his opinion can be relied upon by courts. At the same time, English and Welsh courts require expert witnesses to be people who can act with high standards of accuracy and independence to ensure justice is served to a victim (Gillespie A 2007, p. 77). This implies that before courts can accept expert evidence from an individual, that person must prove his competence. For instance, in the case where forensic evidence is required to prove the involvement of a person in the case, English, and Walsh courts ensures that the person appointed to conduct investigations and testify is qualified and has enough experience in forensic investigations. The same applies to all other areas that may require an expert opinion to help in deciding a case in the English and Walsh courts. The other function of an expert witness under the English and Walsh common law system is to assist the jury in decision making by furnishing them with information regarding their area of specialization to enable them arrive at a fair and unbiased judgments. This is important because it ensures that the English and Walsh citizen receive justice within the legal system. Independence of expert witness As earlier mentioned, expert witnesses plays a critical role in ensuring that justice is served to the people. They serve this critical function by furnishing judges with expert opinions on scientific matters that are beyond their knowledge. Since their decisions can sometimes be used by jurists in convicting an individual, the English and Walsh common law system require expert witnesses to provide independent opinion formed based on their personal knowledge and experience (Skellern 2008, p. 737). In this regard, they are expected to perform their functions free from interference from clients or any other person that might be interested in the case. Maintaining independence when providing opinion is important since it minimizes instances of biased opinions (Gillespie A 2007, p. 85). There have been several instances of expert witnesses experiencing biased opinion after being compromised through bribery and other forms of enticements. This is considered unethical conduct, which is punishable by law. Conclusion The England and Wales has one of the best legal systems that ensure that the powers of the government are limited by law. Introduced in 1215 after the signing of the Magna Carta, the common law system adopted by the two British member states ensures that citizens abide by law and justice served whenever there is breach. Even though judges have the responsibility of service justice to complainants and the defendants, some instances do require the services of an expert witness. For example, today the nature of crimes has become very complex with some requiring scientific proof. However, since most judges lack the scientific knowledge and experience on matters scientific, expert witnesses in these matters are normally required to help the judges understand and interpret given evidence. As such, the English and Walsh legal system usually requires expert witnesses to help judges in interpreting scientific evidences. This has ensured that ruling given by judges are credible and is beyond reproach. References Beran, R. G 2009, The role of the expert witness in the adversarial legal system. Journal of Law Medicine, 17(1):133-137. Gabbay, E 1990, The English adversarial system. E. and J. Gabbay Publisher, London, UK. Gillespie, A 2007, The English legal system. Oxford University Press, Oxford, New York, NY. GMC, 2008, Acting as an expert witness. General Medical Council, London, UK. Langbein, J. H 2003, The origins of adversary criminal trial. Oxford University Press, New York, NY. Law Reform Commission, 2005. Report 109 (2005)-expert witnesses. New South Wales, Sydney, viewed 1 Feb. 2014 http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_r109ind. McEwan, J 1998, Evidence, and the adversarial process: The modern law (2nd edn.). Hart Publishing, Oxford, UK. Roberts, P 1993, The role of forensic science evidence in criminal proceedings. HMSO Books, London, UK. Skellern, C 2008, Medical experts and the law: Safeguarding children, the public, and the profession. Journal of. Paediatrics Child Health, 44: 736-742. Slapper, G. and Kelly, D. 2009. The English legal system: 2009-2010 (10th Edn.). Routlege-Cavendish, London, UK. Woolf, H., and Great Britain, 1996, Access to justice: Final report to the Lord Chancellor on the civil justice system in England and Wales. HMSO Books, London, UK. Read More