Expert Witness in the UK: Fire Investigation - Essay Example

Expert Witness in UK- Fire Investigation [Name] [Lecturer] [Course] [Date] [2016 WORDS] Expert Witness in UK- Fire Investigation In cases that concern fire accident or arson attack, technical and scientific evidences are significant instruments of justice. Still, they can also cause numerous problems to the adversary trial process when it comes to determining their admissibility in fair trial. Such problems are largely reflected in the legal doctrine that relate to opinion an expert witness provides. Compared to other layperson witnesses, as an expert witness, the fire investigator’s testimony has the capacity to independently influence the outcome of an arson trial. An expert witness is, according to (Law Commission 2011, 12-15), an individual possessing particular specialized experience, expertise, knowledge, education, training, and skill that supersedes the knowledge of an ordinary jury or a bench of judges. Lentini (2012, 601) views an expert witness as an individual who explains and provides opinions regarding a specific complex issue that is beyond the general knowledge of an average population. Their role goes beyond testifying to helping the jury to interpret facts regarding a specific complex issue. The rules of evidence that govern the admissibility of expert testimony form an exemption to an imprecise rule that excludes opinion evidence. In the UK, the justice system takes lead in deciding the factual issues that may not be settled using other out of court forums, specifically in criminal offences, such as arson attack. This essay argues that the UK courts have used a policy of laissez-faire when it comes to the admissibility of expert opinion evidence in court trials. While there is presently an undeveloped common law reliability test for expert opinion, its fundamental impact is largely misleading. The UK courts decide the factual issues that may not be settled regarding criminal offences, such as arson attack. In pursuit of facts, policies and methodologies for evaluation of evidences have permitted the court to make judgements on arson cases. A special class of evidence, or opinion, has come up that permits scientists to provide evidence as an opinion based on the case of Frye v. United States [1923]. Despite frequent criticisms, the courts have used Frye rule since it was first adopted in 1923 to determine the evidentiary value and admissibility of an expert opinion. Some cases have brought issues regarding admissibility of expert evidence to doubt due to its laissez faire nature. The Court's ruling in the case of Daubert v. Merrell Dow Pharmaceuticals established grounds to question the roles of expert witnesses due to their potential to falsify evidence. The case established the law of the land called Popperian principle of falsification, as a determinant of scientific knowledge. The opinion rule in jurisdictions of the United Kingdom has a similar origin. Frye rule has been used in the UK in this regard. The rule that excludes opinion evidence shares an origin in the same way as hearsay rule, which requires that each witness has to say that he has seen or heard that to which he argues against.” Applying this rule in trials is contingent on difference between facts and opinion. Still, as Underwager and Wakefield (1993) noted, such as distinction is most often vague. In the UK, the Court of Appeal often applies the South Australian case law Bonython [1984], which used the Friar rule, in determining admissibility of expert testimony. The first rule considers the subject matter of the opinion in the situation that a lay person testimony lacks experience in the field of knowledge and therefore lacks the capacity to form sound judgement facts during trial without the assistance of an expert witness with specialised knowledge in a field the court has interest (Law Commission 2011, 12-15). The second rule considers situations where the subject matter of the opinion is a component of a set of experience or skills that is sufficiently recognised as capable of being accepted as a reliable body of experience or knowledge that can make the expert’s opinion to be of assistance to the court. The third rule considers whether the expert witness has acquired sufficient education, experience or knowledge in the field to validate his opinion in making inferences to facts during trial (Law Commission 2009, 23-25). The UK courts have generally used a policy of laissez-faire when it comes to the admissibility of expert opinion evidence in court trials. In which case, while an undeveloped common law reliability test for expert opinion presently exists, its fundamental impacts are mostly illusory. As held in the case of Field v Leeds City Council [2001], an expert witness should have the capacity to provide unbiased opinion since he has an overriding duty to the court based on the oath he takes, rather than the party that has summoned him to testify. Even though consideration for impartiality is necessary in a trial court since the expert opinion is assumed to enjoy monopoly over the opinion he presents to the jury, determining the neutrality of his opinion is also tricky. Hence, the possibility of confusing or misleading the jury exists Indeed, studies have established that in the UK, especially Wales and England, the courts use expert opinion on rare occasions due to evidentiary unreliability. The UK Courts tend to admit expert opinion on ground that is its reliability could be effectively challenged in the event of a trial through adduction and cross-examination (Singh et al 2013, 106). At any rate, cross-examination would appear as an deficient protection against unreliability for expert testimony produced as evidence under a laissez-faire approach to admissibility. Based on the Frye rule that the UK relies on, it is reasoned that under a laissez-faire approach to admissibility, the expert evidence provided by an expert may be admissible even if the court is not satisfied that it is satisfactorily reliable (Cromwell 2011). Additionally, the expert evidence can be admitted even in situations where the evidence is predicated on sound techniques, principles, assumptions and techniques. Even when such techniques have not been appropriately applied to the facts of the case or even when the evidence is not supported by such principles, assumptions and techniques as applied to the facts of the case (Singh et al 2013, 106). This is since under the laissez-faire approach to admissibility, assessing the soundness of the methodology and principles that underpin the opinion evidence or an expert witness is difficult. At the same time, it demands that the jury focused on the expert’s reasoning to make sure that the expert’s final conclusions are logical in keeping with the appropriate relevance of the general inferences established from the core methodology used to establish the facts of the case. Additionally, when it comes to evidentiary reliability, it does not provide any specific guideline the jury can use to determine if the admissibility test is satisfied with a set of guidelines when it comes to scientific evidence, such as those regarding the cause and origin of fire (Cromwell 2011). In usual cases, the ordinary or layman witness is regarded as likely to form judgments and put across opinions while presenting evidence. For instance, the statement that the building was burnt unevenly expresses a conclusion established from observed facts. (Law Commission (2011, 12-15) observes that in actual fact, all testimonies to issues of facts are opinion evidence, such as a conclusion established from mental and phenomenon expressions. In Lentini’s (2012, 601-02) view, the opinion rule does only bar witnesses from making inferences from the facts they perceive. Hence, in the Frye rule, witnesses are allowed to give evidence based on the impressions they establish at the time of the incident in spite of whether such impressions can often be the outcome of subconscious inferences. This perception reflects the “modern opinion rule” that allows witnesses to state under oath their insight into the relevant events rather than their factual inferences and conclusions. The laissez-faire approach to admissibility brings about the concerns regarding the accuracy of the science that underlies the expert opinion in the UK, the situation is however different in the United States. In the Unites States, states have used the Federal Rules of Evidence as the guide to determining the admissibility of evidence in a trial. In the United States Federal Courts, three dimensions of the law of evidence apply, which have influenced the development of the law in the UK. Customarily, the law regarding the admission of expert opinion was based on the subject matter and expert’s qualification, the United States law has tended to focus on the accuracy of the science that underlie expert’s testimony. In the Frye v. United States, the court proposed the principle that expert opinion has to be anchored in scientific discoveries or principles satisfactorily established to gain general acceptance in certain fields in which it belongs. It could be reasoned that the UK, particularly Scotland, uses a similar methodology. Although that is less demanding regarding the need for the expert’s opinion in the principles, several recognised branches of expertise, experience, and knowledge. In which case, when the opinion of the expert is inconsistent with the recognized body of knowledge, it is likely be inadmissible in a UK court since cannot be tested on cross-examination. Still, the case of Wales and England is less clear. Indeed, while an appellate jurisprudence exists that applies a Frye-type rule, a consultation paper published by the Law Commission (2009) promotes the perspective that the Frye test is inconsistent with the English law. In the United States however, the Frye test of general acceptance is controversial as established in the Federal Rules of Evidence’s Rule 702 that is concerned with expert evidence. Rule 702 clarifies its operation is not restricted to evidence that may be excluded by the opinion rule. Rather, the rule applies in situations where “technical, scientific, or other specialized knowledge is expected to assists in establishing facts. Like the United States, Canada made a similar progress in the landmark ruling in the case Supreme Court, in R. v. Trochym [2007], where the court held the concern regarding the reliability of the science that bring about evidence is as significant when facts extracted using scientific techniques are presented to the jury as in situations where opinion is brought to the jury through an expert witness who uses his inferences based on a scientific method. An additional important development to the United States Federal Law that occurred in the Supreme Court that required that before technical evidence or expert opinion is admitted for use by the jury, the court has to be satisfied that it is satisfactorily consistent to validate its admission. Such a rule has come to be regarded as the ‘gate-keeping role of the trial judge with respect to expert and technical evidence.’ In actual fact, the Court turned down the use of Frye in testing for admissibility in situations the Federal Rules of Evidence governs. Reflecting on the progresses made in common law evidence, the Canadian courts have adopted a similar gate-keeping role of the trial judge in determining the admissibility of expert opinion to ensure it meets the reliability threshold before it is admitted for evidence. The development started in the case R. v. Mohan [1975]. Conclusion The UK courts have used a policy of laissez-faire when it comes to the admissibility of expert opinion evidence in court trials. While there is presently an undeveloped common law reliability test for expert opinion, its fundamental impact is largely misleading. The rules of evidence that govern the admissibility of expert testimony form an exemption to a imprecise rule that excludes opinion evidence. The laissez-faire approach to admissibility brings about the concerns regarding the accuracy of the science that underlies the expert opinion in the UK. The situation is however different in the United States. In the Unites States, states have used the Federal Rules of Evidence as the guide to determining the admissibility of evidence in a trial in regards to their technical or scientific nature. This is since under the laissez-faire approach to admissibility demands that the jury focused on the expert’s reasoning to make sure that the expert’s final conclusions are logical in keeping with the appropriate relevance of the general inferences established from the core methodology used to establish the facts of the case. References Articles, Journals and Books Cromwell, T 2011, "The Challenges of Scientific Evidence," Macfadyen Lecture 2011 Law Commission 2009, “The Admissibility Of Expert Evidence in Criminal Proceedings in England and Wales a New Approach to the Determination of Evidentiary Reliability,” A Consultation Paper: The Law Commission Consultation Paper No 190 Law Commission 2011, Expert Evidence in Criminal Proceedings in England and Wales, The Law Commission, London Lentini, J 2012, Scientific Protocols for Fire Investigation, CRC Press, New York Underwager, R & Wakefield, H 1993, "A Paradigm Shift for Expert Witnesses," Institute for Psychological Therapies vol 2 no 3, Singh, L, Sinnott-Armstrong, W. & Savulecu. J 2013, Bioprediction, Biomarkers, and Bad Behavior: Scientific, Legal, and Ethical Challenges, Oxford University Press, Oxford Case Laws Bonython [1984] 38 SASR 45 R v Mohan - [1975] 2 All ER 193 Field v Leeds City Council - [1999] All ER (D) 1406 Frye v. United States, 293 F. 1013 R v Trochym [2007] 1 SCR 239, Read More