Independence of an Expert Witness in the English Legal System - Coursework Example

Qualification, Roles and Responsibilities, and Independence of an Expert Witness in the English Legal System Module Name Module Code Name of Module Tutor Student’s Name Institution Date Academic Year Qualification, Roles and Responsibilities, and Independence of an Expert Witness in the English Legal System Introduction An expert is someone with experience or knowledge in a given field that ordinary persons do not possess. A person who presents the useful information or knowledge that may assist the jury in making a decision on a case in the court is referred to as an expert witness (Hall & Smith, 2001). The information helps one to understand the issues arising from the case and come up with a just and sound decision. The witnesses may also provide expert evidence in the field of their expertise. However, the evidence may be opposed by the defendants that at times tarnish their reputations. Expert evidence is usually a conformational proof that a witness offers. Some of the witnesses provide only one type of documentation referred to as confirmation of the fact. It is the court’s obligation to utilize the attestation in determining the judgment. The witness thus only assists the jury in reaching a decision following the evidence that is presented to it. A witness may be more helpful by providing detailed information that may allow the magistrate to evaluate if the opinions have some truth in them (Blom-Cooper, 2006). Situations may arise when scientific or technical knowledge is needed to assess issues in a case, and this would always call for expert evidence. The English Legal System employs an adversarial approach in determining how cases are to be resolved (Huxley-Binns & Martin, 2008). It determines when and how the expert witnesses may be involved in settling disputes. The courts have thus to rely on expert witnesses more so in criminal and civil cases that require scientific knowledge, which the judge lacks and needs an explanation. It had been resulting in delays of cases as the experts could be reluctant in offering the necessary evidence. Sometimes it often increased the costs of hearing the cases, and expert witnessing was thus made to be under the control of the court. Qualification of an expert witness Witnesses that are usually called to offer expert evidence must meet some requirement as they are to provide their professional opinions on the evidence. They are different from non-expert witnesses who only rely on what they saw and heard (Redmayne, 2001). An expert witness should be someone with education, skill, experience, knowledge, or training in a particular field. The individual must base the testimony on the facts and data that can be relied upon by others, which may be of help to the judges. Expert witness should have a command in the field and provide information that may assist a person searching for evidence reach a conclusion in a trial. The witness should be able to bring some impacts on the case by first understanding all the requirements of the litigation (Grainger & Fealy, 1999). Before the witness is called to give an opinion, the court first establishes if the matter requires such evidence. They have to establish if there is any organization that has specialized in the field that may substantiate the opinion testimony. The witness must be examined if he or she can offer valuable opinion on the matter at hand. The person should be an individual who regularly engages in the routines of the profession, which he or she had trained on and has enormous experience. The witness should possess special skills or knowledge in the area that requires the testimony (Hall & Smith, 2001). One is thus recognized to qualify as an expert witness due to the practical experience in the field. It is done by inquiring about the witness' knowledge. Disjunctive provides the procedures that one may employ in expressing the expert opinion. Therefore, it means that the certification is not mandatory but the possession of sound knowledge in the area is sufficient. One must have ideas in the discrete subject so that they are properly offered with the aim of assisting the others who do not have much knowledge in the matter (Bond & Solon, 1999). They have the mandate of remaining objective and expressing genuine opinions that should not be biased toward any of the parties. The scientific thoughts are not to be kept from the jury, and all the hypotheses employed must be communicated to the court. It is thus highly recommended that the experts on both sides of the case should consult with one another before the proceedings start (White, 1998). They should settle in prior their points of disagreements and agreements by reasoning together. The experts must understand that their primary objective is to help the court despite the side that was involved in hiring them. The evidence they provide is usually over-relied upon by the court and should not lean more on one side that may bring injustice. Credibility of the evidence must be based on the way it is presented during the proceedings. It is legally right to choose a representative from the firm to be an expert in a case that the individual could be having interest. It is the integrity of the evidence that may be questionable due to the ties that the witness may be having with one of the parties. However, that should not form a basis for denying one to use an in-house expert. There are reasons why there has been an emergence of employing in-house experts in many cases. Firstly, the perceived impartiality of the outside experts remains to be a myth, which is often disapproved of practice. Their credibility cannot be determined easily by the mere fact that they seem not to have conflict of interest in the case. The ties that exist in those involving the in-house experts at times do not influence the honesty of the evidence, and they are often highly credible. Evaluation of proof should be based on the infallible logic with which the report is presented to the jury (Huxley-Binns & Martin, 2008). These experts usually have the primary information on the issues at hand and can monitor the progress of the litigious event from the beginning. It is carried out at relatively low cost as compared to when the outside experts are involved in the litigation process. Therefore, the courts have all the reasons to consider the evidence that the in-house experts present in a trial. The court has an enormous responsibility in determining the outcome of a case and has to examine the evidence from the witnesses critically. It has to ascertain the viability of the expert witness from the experience that one possesses. It cross-examines particular trainings that the expert has in the area of interest. The court ensures that all the facts that will be needed in rendering admissible opinion before the jury are available (Hall & Smith, 2001). It must establish the scientific reliability of the opinion given by the experts to ascertain its probative value. The expert must be able to communicate freely with the court in a language that the jury may understand. The concerned parties can then understand issues of concern. The experts should ensure that they have precisely identified all the judicial directions that are required before the admission of the evidence. It should include resolving any of the disputed evidence to avoid confusion during the proceedings. The court is thus needed to make an assessment of the prejudicial effects that could be having more weight than the evidence that is to be given by the witness. It is the duty of the expert to provide all the relevant information (both negative and positive) that will facilitate the entire process. The court should verify that an oath has been taken by the expert on the promise to disclose all the relevant findings (Robertson & Vignaux, 1995). Roles and Responsibilities of an expert witness Expert witnesses have the call of offering assistance in the matters that are in court through their skills and experience. They are obliged to provide the useful information without being pushed to do so and are to offer it at their free will (Blom-Cooper, 2006). They are first to be asked to confirm if they are aware of whether their reports conform to the principles that are set out by the regulatory bodies and the case at hand. They have the duties to ensure that the much-desired information impacts significantly on the litigation process. Successful implementation of all that is necessary for the process depends on the evidence, and so they have the moral obligation of providing facts that are not based on speculations. The evidence that they present have to be independent and should be an impartial product that comes from the expert. The document that is to be taken for filing by the court should not in any way be manipulated for whatever reason. The individual has the responsibility of providing the unbiased opinion on the matters that involve an area that one has experience. The person must use the expertise to offer substantial evidence to the court. It is required of the witness to provide all the facts, as well as, the assumptions that the opinion is based on in the court (Bond & Solon, 1999). It is to ensure that no cover up is done as the conclusions are drawn. One should be honest enough to include all the materials including those that detract from the final opinion of the expert. An expert is expected to make it clear from the beginning in case a particular concept lies outside one’s expertise. It helps in putting in measures that will facilitate evidence extraction from the available materials that one is well conversant with in the field. When an expert does not research properly on the matter because of insufficient data, one should come out clean and explain that to the court. The opinion can then be considered to be provisional, and the case should not be based on it entirely (Keith, 2011). Experts must indicate to what extent they believe the report qualifies to offer the truth. Any change of mind by the witness after presentation of the report must be communicated in time to the concerned parties. It is possible that the expert may modify the views after going through the reports from the other side of the divide (Redmayne, 2001). It is to be mentioned through the legal representatives of both parties and the court as well. There are cases that the expert witnesses may require using calculations, photographs, plans, measurements, or survey reports. These must be provided to the other opposite side as they will be exchanging the reports. It helps in the clarification of the reports and adds weight to the evidence that the expert may provide to the court. However, the expert should by no means assume the role of an advocate. The evidence must be restricted to technical matters only that the court may deem to require thorough explanation. The witness is only to clarify the issue and not to usurp the judge's role by offering a more conclusive remark during presentation (McKasson & Richards, 1998). There should be co-operation between the expert witnesses across the parties so that they narrow down on the technical matter at hand as fast as possible. They can then put aside or in place the peripheral issues in the context of their argument and arrive at a shared understanding. It can be possible through attending the meetings procedurally without prejudice as is required to find an amicable solution to the problem. They have to establish the areas that they agree with one another and precisely define those that are contentious. These are then set out well in the joint statements of the experts as is ordered by the court (Hall & Smith, 2001). It helps one to reconsider the initial stands that he or she might have taken at the start. The new information that one acquires may make the expert change the perception at the earliest stage possible. Expertise that the experts employ must be based on the principles that can be tested. The basis on which the experts use to reason out the technical matters must have a foundation for the argument. There must be a proof of such an occurrence, or it must be a viable outcome that can be related to the already established conventions. It implies that the information must be based on scientific facts that one can readily associate with the issues at hand. The experts are not to rely on speculations as they go about establishing facts for the case. The principles must also be that they had been tested in the past. There should be a proof that the methods employed by the experts are well-known and can be relied upon for accuracy of results. Any slightest mistake that the expert makes while drawing conclusions on the findings may be detrimental to the parties. There is the need to take great caution while giving the final report that captures all aspects of the evidence. The knowledge used by the expert must be one that comes from the available publications or peer-reviewed journals whose authenticity has been established by suitable bodies. They must be documents that can be provided to the court at any time and must be easy to retrieve (Meyer, 1999). It may enhance the credibility of the source of evidence as they operate with partiality. All the procedures that are involved in the acquisition of proof must be clearly set out for the jury to go over it. The standards that are used in comparing the findings must be well-stipulated for ease in confirming the connections. One must confirm whether the procedures and rules that are employed are acceptable in the practice (McKasson & Richards, 1998). It will ensure that no doubts are cast on the process that was used in acquiring the evidence. The experts thus have the duty of ensuring all that is captured in the report can be validated by them. They should be able to avail them in court when called upon to do so by the jury. Independence of an expert witness The expert witnessing may be characterized by bias, which may undermine the independence and impartiality of the case that is in court. The forms of preconception can be categorized into three broad types. These include selection bias, adversarial bias, and unconscious partisanship. The adversarial bias entails the process through which an expert tailors the evidence to suit the client. It is against the law, and one should offer genuine information irrespective of the party to be found guilty. The independence of the expert will allow for this desired evidence to be brought forth to court. The other is selection bias that is usually seen with the jury as they often choose the evidence with their views that they support the case. They may tend to put aside those evidences brought by the witness and deemed not to suit their cases. It violates the independence of the expert witnesses, and all the proof that they may bring to court must be looked at and analysis done thoroughly. Unconscious partnership has been one of the factors that affect the autonomy of the expert witnesses significantly. It is a more subtle type of predisposition that stems from the fact that the counsel employs the expert (Hall & Smith, 2001). The witness will have the tendency to support the employer due to the offered incentives. There are chances that conflicts of interest can also arise because of the relationship that may exist between the parties involved in the case. Maintenance of the impartiality and independence of the evidence must be a priority so as to prevent wrongful vindication of suspects. It is because of this that the expert witnesses are to follow a set code of conduct by the courts. The law stipulates how the evidence is to be offered, and the witness should not act under the influence of any external forces or parties. They should first be put to acknowledge to have read the code and accept to be bound by it. They have to show a conscious appreciation to the requirements of the system as they prepare the report independently and present to the court. The expert evidence that is taken to the tribunal must be an independent work of the expert without being influenced by the outside pressures. The facts are to be stated together with the assumptions that are utilized in basing their opinion (Ramjohn & Landa, 2009). No material facts are to be omitted including those that could detract from the conclusion they came up with in the evidence. The witness must not have an interest in the case that he or she is to testify. The court must thus determine this early enough and weigh on the other possible sources of the evidence. The viability of the witness taking part in the case will depend on the weight that proof may have on the court proceedings. The parties that may have to call the witness who has a conflict of interest in the case are required to state this early enough before the hearing starts. The court will then have to determine whether the conflict of interest may adversely affect the case. In case the independence of the witness is noted to have been influenced, there are consequences that may come with it. They include declaring the evidence unacceptable. They are to be disregarded after establishing that they were impartial. The court can order the costs be against the expert witness. They should also be reported to their respective professional bodies for misconduct. The expert is liable of being sued for negligence (Blom-Cooper, 2006). These repercussions call for proper guidance to the witnesses, and they should be informed of the duties they owe the court. The witness must be aware of the correlated procedural obligations and must be honest throughout the process. The rule of evidence requires that only the experts recognized by the court are to give opinions on the facts drawn from the conclusions. Disputes that can arise from the technical issues will need clarification from the expert so that the judge may understand (Bond & Solon, 1999). However, the court should only accept such elucidations if they are free of errors, thoroughly documented, and support the facts in the evidence. Any expert can only be heard in court after filing the report in the court record and communication to all parties must be done appropriately. The report must show credibility in the analysis and independence in its preparation for it to be incorporated in the case. Reference List Blom-Cooper L (ed), ‘Experts in the Civil Courts,’ (OUP, Oxford 2006) Bond C. and Solon M, ‘The Expert Witness in Court: A Practical Guide,’ (2nd edn Shaw and Sons Crayford 1999) (ISBN 0-7219-1441-1) Grainger I and Fealy M, ‘An Introduction to the New Civil Procedure Rules,’ (Cavendish London 1999) (ISBN 1-85941-499-0) Hall G and Smith G D, ‘The Expert Witness,’ (3rd edn Barry Rose Law Publishers Chichester 2001) (ISBN: 1-902-681-26-6) Huxley-Binns R and Martin J, ‘Unlocking the English Legal System,’ (2nd edn Hodder Education, London 2008) Keith RB, ‘Expert Psychological Evidence,’ RCPsych Publications 2011 McKasson SC and Richards CA, ‘Speaking as an Expert: a Guide for the Identification Sciences from the Laboratory to the Courtroom,’ (Charles C Thomas 1998) (ISBN: 0-398-068402) Meyer C, ‘Expert Witnessing: Explaining and Understanding Science,’ (CRC Press 1999) (ISBN: 0-8493-1197-7) Ramjohn M & Landa J, ‘Unlocking Evidence,’ (Hodder Education, London 2009) Redmayne M, ‘Expert Evidence and Criminal Justice,’ (Oxford University Press 2001) (ISBN: 0-19-826780-0) Robertson B. and Vignaux GA, ‘Interpreting Evidence - Evaluating Forensic Science in the Courtroom,’ (John Wiley & Sons 1995) (ISBN: 0471-96026-8) White P, ‘Crime Scene to Court: The Essentials of Forensic Science,’ (Royal Society of Chemistry 1998) (ISBN: 0-85404-539-2) Read More