Common Law: Expert Opinion in United Kingdom - Case Study Example

Common law’s Approach to the Admissibility of Expert Opinion is Laissez Faire in United Kingdom Student’s Name Instructor’s name Course Name Date Common Law’s Approach to the Admissibility of Expert Opinion Is Laissez-Faire in United Kingdom Introduction On the ground of evidentiary unreliability, criminal courts are expected to seek the testimony of an expert. For a long time, judges in the UK have relied on the evidence of experts from scientific and medical fields among others. Unlike other nations like the United States, the United Kingdom courts do not question the reliability issues arising from the expert evidence. Consequently, the expert testimony has been taken as the ultimate source of information to assist the jury in making rulings for subjects that they know nothing or little about. Such rulings or court decisions end up being a miscarriage of justice since the expert’s testimony is a personal opinion liable for bias and partiality. As a result, any decision by the judges based on such evidence is unfair and questionable. Some of the issues associated with the use of expert opinion in the courts include undue esteem to the expert in complex fields, the use of one expert’s testimony, and lawyers’ lack of understanding of the limitations of the field. When an expert gives undeserved esteem to their complicated fields, the danger is that it may be hard to seek answers regarding reliability of the opinion. For instance complicated fields with little peer reviewed journal article are hard for the jury to seek clarification and will tend to take the evidence as the absolute truth. Additionally, too complex fields make it harder for lawyers to understand and identify any existing limitations of the evidence which means that the decision of the judges will just rely on the unquestioned expert opinion. Finally, most of the courts seek the expert testimony from just one witness. The result is that there is no room for cross examination, hence no clarification and the decision is founded on the opinion of just one expert and the absence of cross-examination means such opinion is not interfered with but taken as the ultimate knowledge. These and other factors are what nations like the US prevented when they implemented policies for courts to always validate the expert opinion for reliability and certainty that existing principles in the area of expertise have been used to generate such testimony. The paper evaluates the state of admissibility of expert opinion evidence in the UK and the factors that make it one of laissez faire. The paper issues reliable recommendation on how to improve the current situation. UK’s Common Law Admissibility of Expert Opinion Today, the common law in the UK does not seek the answer to numerous questions when considering the admissibility of expert opinion evidence into the criminal courts. The best question to seek an answer for would be, “what would be fairly admitted as evidence in a court of law?” (Singh et al. 2014, p. 106) Answering this question would make it easier to sufficiently ensure that any expert opinion admitted into a court of law is nothing short of satisfactory and acceptable within that given field. However, the current state of science in the UK criminal courts is nothing close to seeking fair admission of expert evidence (Leestma 2014, p. 85). The major challenge and contributing factor to the continued laissez-faire condition in the UK criminal courts is the lack of reliability admissibility for expert testimony as pointed out by The Forensic Society [The112]. Without these tests, the admission of expert opinion is only subject to satisfying four requirements that include assistance, impartiality, relevant expertise, and reliability. Assistance requires that the opinion of any expert should offer the court with information beyond the knowledge, understanding and experience of the judges. The danger is that such information is simply abdicated by the judges, who are non-specialists, as the truth and use it to base their own decisions. In this case, the jury has no expertise to ascertain and weigh the facts before accepting them. Secondly, relevant expertise requires that the expert provides sufficient proof of their claim to be experts in a given field. They have to possess unquestionable knowledge of the required field so as to provide valuable testimony (The Law Commission 2011, p. 13). Despite the proof, the criminal courts in the UK do not value how the expert was acquired nor is there any threshold that indicates that the expert rate relatively low in reference to a given standard, on probabilities balance. Consequently, the fact that the chosen expert demonstrates sufficient knowledge of the identified subject matters more than the level of reliability and relevance the testimony has since the expert is perceived to grant only valuable opinions (Priston 2014). Thirdly, an expert is expected to observe impartiality. The implication is that the common law requires that experts issue only opinions that are unbiased to the court. Such duty is overriding and is set out in the Criminal Procedure rules 2010, r33. The danger with this requirement is that even if the expert’s testimony maybe biased, it does not necessarily translate to being inadmissible in court proceedings. Priston [Pri14] explains this to mean that, provided the opinion of an expert within the common law courts in England, Wales, oScotland, foundeded their opinion on established theories, then it is reliable despite clear inadmissibility for its quack or charlatan nature. Finally, evidentiary reliability requires that the opinion of the expert must be founded on their field of expertise and that only recognize and organized knowledge body is accepted as reliable. Since the common law does not support any policies requiring the use of reliability test to validate that the expert opinion evidence is within acceptable reliability, then this aspect is mostly overlooked and expert opinion evidence is admissible despite the absence of reliability proof. Under the current conditions, Priston (2014) reveals that expert opinion unreliable expert opinion is too easily admitted in a criminal court yet too weakly or not even challenged such that the jurors, who lack expertise in that field, simply accept it as unsound as it may be. Singh, et al [Sin141] recognizes this situation as insufficiently reliable for admission into a criminal court for failing to fulfill four critical conditions. First, the evidence is only grounded on a hypothesis that is not subjected to adequate investigation such as through experiments. Secondly, such evidence is only founded on assumptions that can never be justified since the jurors simply accept it without question. Thirdly, the data used for such evidence could be flawed, especially since no reliable tests are available for proof that the opinion evidence is from acceptable principles and theories in a given field. Finally, the current opinion evidence presented in criminal courts depends on a process, examination, method, or technique that was either poorly applied, inappropriate, or improperly carried out to the requirements of that case. According toThe Law Commission [Com11] more emphasis was placed on the fact that the current opinion evidence admitted in criminal courts depends on conclusions or inference that have not been arrived at using appropriate means. McKie [McK12] emphasizes that the danger of insufficient opinion evidence lies in the tremendous advancements experienced in various fields as contributing to the increased difficulty ina consistent presentationn of genuine and acceptable expertise. With lack of reliability tests for expert opinion evidence, UK nations -England, Wales, and Scotland - are just shy away from admitting the presence of such complex issues. Scottish Universities Insight Institute [Sco111] reveals that change is inevitable given the multiple lessons from past miscarriages of justice. Cases of Miscarriage of Justice The IRA 1982 Hyde Park bombings were followed by the conviction of Danny McNamee. In 1987, McNamee was convicted of conspiring to cause the explosion, but was later released in 1998 under the claim that relevant evidence had not been disclosed during the ruling. In the UK, several cases of miscarriages of justice followed terrorist bombings. Other cases include, the Birmingham Six spent 16 years in prison for murder of 22 people in 1974. These people were later freed at the Old Bailey in 1991, after the court of appeal rejected their convictions after identifying fabrication of evidence. In 1993, the police were accused of tampering with evidence. In 2004, Cameron Todd Willingham was wrongfully sentenced for causing a fire in which his three daughters had died 13 years earlier (1991). The conviction was based on exaggerated arson expert opinion. However, after the re-evaluation of the nine independent experts, the forensic analysis was mistaken. Evidence from the independent experts was found to deviate from modern fire science and this meant that arson was unsustainable (State of Texas v. Carmeron Todd Willingham 1992). Lentini [Len12] sums the miscarriage of justiceinn arson cases as caused bythe lackk of sophisticated decisions by the practitioners who lack relevant qualifications. For competence, such investigators must hold up-to-date basic knowledge of fire science and chemistry, fire dynamics, computer fire modeling, fire investigation technology and methodology, and explosion dynamics among others. With such knowledge, investigators will manage to interpret varying fire patterns for relevant and reliable judge decisions (Lentini 2012, pp. 13-14). Rejection of General Acceptance According to Watkins [Wat94], cases of miscarriage of justice arose from general acceptance of the juror on expert opinion in their ruling. The main ground for conviction and execution was on the ground that the petitioners do not manage to provide admissible evidence and the fact that the defendant is supported by expert opinion from impressive credentials. In the UK, the general acceptance test is an absolute prerequisite to admissibility and is at odds with liberal evidentiary policies and does not relax traditional barriers to “opinion” evidence. However, Daubert v. Merrell Dow Pharmaceuticals, Inc. [DAU93] case revived the perception of general acceptance by requiring the judge to take up the role of gatekeeperer whose role is to ascertain that the expert’s testimony is founded on valid foundation and is relevant. Through the findings of this case, the requirement is to evaluate whether the technique applied in obtaining expert opinion is tested, the available error rate, and the extent of acceptance of a given technique. Available Options to Change Common Law Through the application of Daubert four options should be applied in the determination of evidentiary reliability. First, determination of exclusion without guidance implies that authorization to offer expert evidence is rejected because the probative value is considered to outweigh the danger that misleads, distracts, or confuses the jury. Secondly, evidentiary reliability determines exclusion with guidance where offering expert evidence is accepted since its probative value offers significant guidance to assist the judge. Thirdly, evidentiary reliability must involve an admissibility rule calling for agreement amid experts in a given discipline. Finally, the trial judge must evaluate the reliability in satisfaction of an admissibility rule and this achieves the gate-keeping role of the trial judge. Conclusion and Recommendations Despite government’s rejection of a majority of the proposed Law Commission’s options, the benefits of implementing the proposals would result to groundbreaking reforms regardless of the costs incurred. With their implementation, the reform proposals are expected to change the admissibility of expert opinion in criminal courts through the promotion of reliability and relevance of such opinion. The first judges and other court practitioners are expected to receive practical training on practice criteria for recognizing the statistical significance of investigation findings. Additionally, such training would assist in the determination of dependability of experience-based know-how. Secondly, the judge must be provided with clearly defined test to assist in their gate-keeping role of utilizing the reliability admissibility test to investigate the sufficiency of evidence reliability (The Forensic Society 2011, p. 5). Here, the judge must require that the expert explains the role of their evidence in assisting the jury's failure to which it would not be inadmissible. In extraordinary cases, the court would include an independent assessor who would evaluate whether the evidence satisfactorily complied with scientific principles and is qualified for admission to court. Finally, the accused should not be allowed to present expert proof to support his/her defense after being accused. Here, the court should not be allowed to misrepresent the truth-seeking role of the trial procedure. Reference List Daubert v. Merrell dow pharmaceuticals, inc., 509 us. 579 (1993) certiorari to the United States court of appeals for the ninth circuit. Leestma, J 2014, Forensic neuropatholog,. 3rd ed, CRC Press, London. Lentini, J 2012, “The evolution of fire investigation and impact on arson cases,” Criminal Justice, 27(1), pp. 12-19. McKie, IA 2012, Expert evidence: Reliability and relevance, ShirleyMckie, London. Priston, A 2014, “What price justice,” Inside Time, April. Scottish Universities Insight Institute, 2011, Scots law of evidence: Fit for purpose in digital and global age?, Scottish Universities Insight Institute, Glasgow. Singh, I, Sinnott-Armstrong, W & Savulescu, J 2014, Bioprediction, biomarkers, and bad behavior: Scientific, legal, and ethical challenges, Illus ed, Oxford Press, New York. State of Texas v. Carmeron Todd Willingham (1992) The District Court Navarro County, Texas. The Forensic Society, 2011, Expert evidence in criminal proceedings in England and Wales, Illus ed, The Forensic Society, North Yorkshire. The Law Commission, 2011, Expert evidence in criminal proceedings in England and Wales, Illus ed, The House of Commons, London. Watkins, H 1994, “Daubert v . M errell Dow Pharmaceuticals, I nc.: General acceptance rejected,” Computer and High Technology Law Journal, 10(1), pp. 259-237. Read More