Expert Evidence of Credibility and Juries - Thesis Example

Name of the Student] [Name of the Professor] [Name of the Course] [Date] Expert Evidence and Juries The English courts have been seen to be reluctant in admitting expert evidence regarding witness credibility. This can be attributed to the unnecessary complication of the task of the jury and that it could usurp the role of the jury. The latter situation presents the danger of the expert being granted unjustified authority on matters that the jury has to decide on its own. However, the jury constitutes a responsible body that has to verify the facts; consequently, it has to attend to expert evidence, in order to circumvent epistemic injustice (Ward 83). Expert evidence of credibility assumes great significance in cases of sexual abuse and molestation. At the time of the commencement of the trial, the essential medical issues to be resolved by the jury should be clear. In addition to describing these issues, expert evidence should be clearly identified, prior to the start of the trial. Unexpected developments in cases involving expert evidence can be avoided to a major extent, by adopting proper trial management in advance. In the Henderson case, the Court of Appeal established general principles and pragmatic guidelines relating to the management and presentation of intricate medical and scientific evidence. Whilst taking up joined appeals relating to the shaken baby syndrome, the Court of Appeal provided explicit guidance on the content of summing up and the management of expert evidence. One of the aims behind providing such guidance was to provide a solution to the problem of managing expert evidence (Bentley and Lownds). Such management was to enable the jury to arrive at a verdict that could be rationally vindicated. Expert evidence of a conflicting nature has to be controlled and marshalled, before it is presented to the jury, if the latter are to employ it in arriving at their decision. The Court of Appeal’s observations in Henderson, were not restricted to cases involving the shaken baby syndrome. These observations were applicable to cases, in which complex and developing scientific evidence had to be evaluated. In such cases, the jury had to exercise great caution, while evaluating evidence based on expert opinion (Bentley and Lownds). Moreover, the jury had to be provided with instructions by the presiding judge, regarding the manner in which they were to assess conflicting expert evidence. Thus, cases involving the shaken baby syndrome tend to be controversial. In addition to exceptionality, such cases illustrate many of the common aspects of criminal trials. Several of the crucial facts of the case are disputed and it is the task of the court to resolve these differences. In this endeavour, the courts resort to their vast repertoire of epistemological, institutional and normative resources (Roberts). In R v VJS, the defendant was charged with a series of sexual offences against a minor autistic girl. The expert witness declared that the victim could not concoct a story or retain in her memory any suggestions made to her for any length of time. This expert evidence was admitted by the Court of Appeal (R v VJS ). However, in R v Robinson, the Court of Appeal rejected the evidence provided by the expert witness. In this case Robinson had been accused of molesting a minor girl with learning disabilities. The expert witness had testified that the victim could not acquire ideas from some other person and that she was not open to suggestion. The Appellate Court dismissed this evidence on the grounds that the prosecution could not call a witness of fact and thereafter an expert witness who provided reasons for the jury to consider that witness reliable (R v Robinson ). The credibility of the evidence provided by an expert witness is opposed on the grounds that such evidence could usurp the role of the jury or complicate the task of the jury. With regard to the latter objection, it had been opined by the presiding judge in R v Turner that if the jury was capable of arriving at a conclusion, on the basis of the established facts, then there was no necessity for introducing expert opinion (R v Turner). An important condition regarding the evidence provided by an expert witness was established in the 1953 case of Davie v Magistrates of Edinburgh. In this case, it was held that the jury or judge was not obliged to accept expert evidence, even if such evidence was not contradicted (Rix 72). Expert evidence can be admitted by a jury for the reasons stated below. First, the expert should have based his opinion on some rule based procedure, while arriving at his conclusion. Second, the extent of the practice based experience of the expert witness (Ward 86). Moreover, the English judiciary remains wary of any attempt by expert evidence to usurp the role of the jury as arbiters of morality and common sense. This caution is not exercised to the same extent with regard to scientific advances that do not contradict common sense. With respect to psychological evidence, the judiciary tends to be less wary. However, the effect of expert evidence on the jury is a remote possibility, due to the fact that it is the sole prerogative of the presiding judge to exclude a confession (Ward 92). Linkage analysis evidence has slowly been making inroads into legal proceedings. This makes it significant to realise the manner in which jurors will view such evidence. Jurors have been seen to comprehend the nature of the evidence. Nevertheless, they harboured reservations regarding exclusive reliance on behavioural evidence to prove guilt (Charron and Woodhams 181). Thus, jurors do not accept expert testimony, in all the cases. A study conducted with mock jurors indicated that just a few of these individuals were given to accepting that the expert witness was more knowledgeable than themselves. On the other hand, the majority of the jurors placed greater reliance on their own knowledge (Charron and Woodhams 181). With regard to the assumption that expert witnesses could usurp the role of the jury, the Court of Appeal laid to rest this apprehension. Specifically, Butler – Sloss LJ held that this was a far – fetched assumption, due to the fact that there could never be any compulsion for a judge or jury to accept expert evidence (Ward 87). Evidence based on psychiatry and psychology generates needless intricacy, which is in general absent in other types of evidence based on science. Unlike the latter type of evidence, psychiatric and psychological evidence of credibility tends to be accepted without much misgiving by the judge or jury, due to the fact that the legal framework does not mitigate it to any appreciable degree (Ward 93). In addition, the ruling in Robinson, make is very clear that expert evidence of credibility is only effective in rebutting the accusations of the opposing party. In instances, where there are no such imputations, expert evidence is denounced as being nothing more than oath – helping (Ward 99). Rape myths have proliferated in an unprecedented manner, and this unwelcome state of affairs has prompted many commentators to propose that the prosecution should be permitted to introduce evidence that disproves such myths. In fact, the prosecution should be allowed to do so, before the defence makes an explicit invocation of this myth. The tried and trusted ways of causing doubts regarding the credibility of a witness are to first, establish that the witness had provided a statement that was an inconsistent description of the events. Second, that the witness had not reported the offence immediately. If the jury insists upon witnesses to provide a consistent account of the incident and require victims to report immediately to the police, then the absence of these could weaken the case. However, a serious injustice could be caused to the victim, if the cause behind such inconsistency and delay were to be ignored (Ward 99). It is generally conceded that the witness is capable of being believed and that this justifies the rule against oath – helping. This renders the evidence of credibility redundant, unless the opposing party attempts to discount this assumption. In sexual offence trials, the issue at stake is whether the jury can accept the account of the complainant, because the only other witness to what had transpired contradicts her contention (Ward 100). In such cases it is difficult to sustain the argument of redundancy and the not guilty plea of the accused raises the issue of credibility regarding the complaint made by the alleged victim. This obliges the prosecution to rebut every possible ground for reasonable doubt regarding the alleged act of the accused (Ward 100). Thus, in England and Wales, the courts employ an adversarial party – driven process, in trials involving serious criminal offences. The fact finding task is allotted to lay juries, and the entire process is governed by a framework of comprehensive principles and procedural rules (Roberts). In such trials, the available sources of information tend to be severely limited. This makes it indispensable to depend on the testimony of expert witnesses. This trend has more or less established itself in criminal litigation, including trials relating to shaken babies. There several contemporary cases where the prosecution’s case is dependent on ballistic reports, fingerprint matching, CCTV surveillance recordings or DNA profiles (Roberts). In such cases, the juries, experts and prosecuting authorities have to reconstruct to the best of their ability, what had transpired. There is an urgent necessity to conduct research on juries and expert evidence. Although, there is a basic association between empirical research on the decision making process of the jury and reform of criminal justice policy and law, the Law Commission did not pay much attention to this relationship. It is essential for juror involvement in court proceedings to be improved, especially with regard to their understanding of expert evidence (Coen and Heffernan 195). In R v Moyle, the appellant was convicted of murder by the trial court. In the appeal, issues related to diminished responsibility and fitness to plead, were brought to the fore. The expert evidence determined that the patient was in a position to comprehend the nature of the charges made against him. However, the patient lacked the competence to plead, due to his mental disorder (Reforming the test for unfitness to plead ). At the time of the appeal, fresh evidence was made available to the court, which established that the appellant’s mental responsibility had been significantly impaired at the time of his committing the offence. The Court of Appeal found diminished responsibility in the appellant’s behaviour, specifically with regard to his capacity to understand and take part in the proceeding and not to his general mental state (R v Moyle ). The evidence has to be admitted into the court proceedings. This is done by the presiding judge, and thereafter the jury assesses the evidence and determines its importance and weight. This was seen in the case of R v Murray. In this endeavour, the jury functions independently and does not seek guidance from the law. The admitted evidence can be ignored or discounted by the jury. The jurors are at liberty to decide whether to accept the authenticity and validity of the tangible evidence (Pattenden 287). As such, the judge must exercise a stringent test of caution before admitting evidence. The jury could doubt the reliability of the admitted evidence and this could transpire even if the judge had applied a sufficiency test to the evidence. The reason behind this is that the judge does not take into account the credibility of evidence before admitting it. As such, the judge merely assumes that the tangible evidence is reliable. The jury, on the other hand, assesses the authenticity of the evidence on the basis of the entirety of the evidence presented during the trial (Pattenden 287). If the tangible evidence is not authentic, then it would result in the jury considering such evidence to be unreliable. Moreover, the jury could arrive at a conclusion that could prove to be detrimental to the case of the defendant. In R v Bhaskar Thanki, such a situation arose. In addition, the jury could arrive at the conclusion that the tangible evidence is unreliable. This was evident in R v Tofilau, wherein the accused had confessed to police officers masquerading as gangsters, in a highly bragging manner (Pattenden 287). Authentication relates to establishing that a document is truly what it claims to be and does not connote assessment regarding whether the document establishes the claim of the tendering party regarding what the document proves. This was clearly brought to light in ASIC v Rich . In general, the jury does not have to satisfy itself regarding the genuineness of evidence, prior to considering it. This is in the fitness of things, as there no burden of proof on the defence. This was evident in TJC v R. With regard to the prosecution evidence, the onus of proof applies only to the final stage of the reasoning process. It does not apply to the various subsidiary issues of the case, as was demonstrated in Campbell v Hamlet (Pattenden 287). Hence, the jury is required to evaluate the evidence in its entirety and not individually. As such, a solitary piece of doubtful evidence does not weaken the applicability of other evidence. In fact, as evident from the ruling in R v MacKenzie, the jury cannot reject evidence at any stage of their discussions (Pattenden 287). All the jurors are required to opine that the authenticity of the evidence has been established beyond any reasonable doubt. This applies to cases, wherein the authenticity of the tangible evidence forms a crucial part of the sequence of reasoning that concludes in an inference of guilt. This was clearly demonstrated in DPP v Spencer (Pattenden 288). On occasion, the defence could insist on strict proof, in such cases, the prosecution has to convince the jury about the continuity, integrity and provenance of forensic science evidence upon which it has based its case. Such evidence will be admitted only if there is some related evidence. Otherwise, as had transpired in R v P (Steven), the forensic science evidence will be prevented from being presented to the jury (Pattenden 288). In addition, section 127 of the Criminal Justice Act 2003, declares that in order to admit evidence, it has to pass the admissibility requirement. This usually involves the act of calling for or submitting statements from all the persons who had obtained, handled or analysed the material (Pattenden 289). In R v Mirza, the House of Lords validated the rule relating to jury secrecy. This rule created several difficulties, which their Lordships had to countenance in R v Thompson. After the ruling in the Thompson case, the concerned jurors made complaints of having been subjected to substantial stress and mental exhaustion, during the consultations (Pattenden, Case Commentaries 362). In addition, there were complaints regarding aggressive behaviour by some members of the jury and the exertion of pressure by the self – employed jurors to arrive at a verdict. There was also a complaint against a juror who had fallen asleep during the deliberations and that one of the jurors had browsed the internet to obtain information and opinions about the case (Pattenden, Case Commentaries 362). In the Crawford case, it was stated by a member of the jury that she was unhappy with the verdict made by the jury. She also complained that she had been put under extensive pressure by other members to accept the verdict. In the Gomulu case, there was an allegation that the brother of the victim had met and spoken with a juror during the trial. However, it was found by the Court of Appeal that this allegation was false (Neutral Citation Number: [2010] EWCA Crim 1623). Moreover, in the Allen case, it was alleged by an usher that one of the members of the jury had asked him whether the case was the first of the five week trials. The appellant had used this allegation as reference to the second case pending against him in the same courthouse. In the Blake case, a juror was intercepted as he tried to bring a pair of clippers into the court. He stated that he brought the clippers to demonstrate a point to the jury (Pattenden, Case Commentaries 362). In the Kasunga case, a juror wrote a letter to the judge with a complaint that the basis of the decision of the judge to sentence the appellant was contrary to what the jury had based its decision upon. In Mirza, the House of Lords established a rule of admissibility, under which evidence regarding the discussions of the jury was made inadmissible (Pattenden, Case Commentaries 362). Consequently, the events that transpire in the jury room cannot be admitted as evidence. There are two exceptions to this rule. The first of these relates to situations wherein the jurors were found to have breached their oath, for instance by arriving at a decision by casting lots. The other exception occurs whenever non – evidential material is brought into the jury room (Pattenden, Case Commentaries 362). Moreover, in Thompson, a juror had disobeyed the instructions of the judge, by accessing the Internet to obtain information regarding the case. This breach was made known through a letter from the other jurors to the judge (Pattenden, Case Commentaries 363). During a court case, common sense assumes great significance. However, common sense displays various attributes and their opposites. For instance, it limited and all embracing, ignorant and knowledgeable, absent and present, and conceded and apparent. These strains are conducted by the experts who inform, assist and suggest (Scheffer 636). The implication is that the expert does not usurp the role of the jury. There are different availabilities of facts in the court and this is brought home by common sense. This notion remains an abstraction and even an idealised projection, in contrast to the police statements and written comments of the expert witnesses, which are tangible expressions. Common sense tends to remain unknown and unaccountable. It enjoys indefiniteness and this trait reminds all concerned about the unpredictable nature of the decision, which connotes that the decision remains indefinite till the final stage of the proceedings (Scheffer 636). The jury are provided with instructions and they are required to adhere to the requirements of the law. Nevertheless, instances have come to light where the members of a jury were found to have breached the law and disobeyed instructions. In general, such acts are not deliberate and can be attributed to situations, in which they are confused by the jury instructions, rules and contracts. In such instances, jurors tend to subconsciously understand these rules in a manner that complies with their personal convictions regarding fair play and justice (Plotkin 62). The outcome is a subconscious modification of the rules by the jurors. In several cases, the evidence presented at trial is of an advanced scientific and technical nature. Nevertheless, such evidence has to be assessed by lay juries and this task is not allotted to experts or scientists. The question arises, whether such lay juries can understand these intricate issues (Schutz 107). It has been contended by many experts and scholars that the average juror has the capacity to comprehend involved medical, scientific or technical issues, provided a competently informed trial attorney helps the juror. The extant system of justice depends on the trial attorney to ensure that the intricate technical evidence admitted in the case is processed by lay juries, so as to decide the complicated issues of the case (Schutz 107). As a result, the trial attorney has to discover methods for explaining technical evidence, in order to ensure that lay juries can comprehend such information at the time of arriving at their conclusion. In general, attorneys resort to expert evidence, at the time of interpreting complex issues to the jury (Schutz 107). Thereafter, it was up to the lawyers to question the expert witnesses, in order to establish the reliability of the evidence. Consequently, expert evidence assumes considerable significance for the average jurors. The latter face great difficulty in understanding such issues, if they have to fall back on their own resources. In such cases, the jurors fail to understand the difficult issues and as a result deliver a verdict that is founded on immaterial or less pertinent factors. All the same, the jury’s verdict should be determined by the material facts of the case, regardless of their intricacy (Schutz 107). The jury members have no control over what is being discussed, and they exercise absolutely no power over the order, tempo or the manner in which the evidence is presented in court. The outcome of this is interference with the attention span of the members of the jury and this could even result in a cancellation of the impact made by the admitted evidence (Schutz 109). At this crucial juncture, it is the task of the trial attorney to combine forces with the expert witness and present the jury with the highly technical information, in a way that maximises the attention span of the jury, while reducing to a minimum the undesirable effects of passivity (Schutz 109). In the absence of these initiatives, the jury will find it much more difficult to comprehend the complex issues of the case. The principal responsibility of making the jury understand the complex issues involved in the case rests with the trial attorney. Consequently, the trial attorney has to make sufficient preparation, along with the expert witness, prior to presenting any intricate scientific issue to the jury. The strategic areas where the knowledge and skill of the expert witness come to the fore are; first, in the identification of incomplete or missing evidence; second, in tutoring the trial attorney to fully comprehend all the relevant technical issues: third, in tutoring the jury. As such, complex issues, entail careful preparation and thorough investigation. A trial attorney can successfully explain complex issues to the jury, only if there is such preparation and the necessary consultation with experts (Schutz 119). The Court of Appeal heard R v Luttrell in the year 2004. The appeal in this case was based on the prosecution’s dependence on lip – reading evidence (R v Luttrell and others R v Dawson and another). Two conditions were stipulated by the Court of Appeal, for considering the admissibility of expert evidence. First, the knowledge or skill of the expert witness endows authority on that person’s evidence, and that such authority is absent with respect to an individual who does not possess such knowledge or skill. Second, the necessary qualification should be possessed by the expert witness to provide the opinion (Appleby 12). With regard to the first of these conditions, the Court of Appeal drew attention to the case of R v Bonython. In this case two issues were considered; first, whether a person who did not possess such expertise could arrive at a sound judgment regarding the subject matter of the case, without resorting to the assistance of the evidence provided by the expert witness (Henry). Second, whether the expert opinion relates to information that constitutes a portion of a body of experience or knowledge that has been accepted as a reliable repository of experience or knowledge (Appleby 12). As such, the Court of Appeal in R v Luttrell conceded that the jury was to be adequately cautioned, whenever a piece of expert evidence involved the danger of unreliability. Such caution or warning was dependant on the material facts of the case and the nature of the evidence presented. As a consequence, expert testimony is admitted in criminal trials, if such evidence provides information that is within the province of the expert witness, to the jury and if such information is beyond the knowledge and skill of the jury (Appleby 12). Although the expert witness can express an opinion that the jury is entitled to consider while arriving at a conclusion, it is the prerogative of the jury to accept such evidence and decide the extent to which it should rely on it. In the Luttrell case, the Court of Appeal admitted the evidence of the lip – reader and this resulted in the failure of the appeal against the conviction (Appleby 12). As was depicted in R v Kilbourne, whenever the aforementioned conditions are satisfied, the evidence provided by the expert witness is rendered admissible. However, the importance to be accorded to such testimony is the prerogative of the jury (Appleby 12). Moreover, expert evidence is not admitted in a case, until and unless it has relevance to the subject matter of the case. In addition, the Court of Appeal held that the admissibility of evidence was determined by its reliability. To this end the court referred to R v Gilfoyle, wherein it was stated that English deems expert testimony to be admissible, only if such evidence is founded on a developing new variety of medicine or science that is deemed to be accurate and reliable by the scientific community (R v Norman Edward Gilfoyle). Thereafter, it was up to the lawyers to question the expert witnesses, in order to establish the reliability of the evidence. The members of a jury are restricted to some extent. This is due to their involuntary confinement, lack of control over the proceedings of the case, limited auditory learning capacity, and the constrained nature of the evidence presented to them. Subjection to involuntary captivity and servitude, in conjunction with variable and limited motivation, leads to apathy, exasperation and resentment. Although, a few jurors evince interest in undertaking jury duty, there are many who consider it an uncomfortable, unpleasant and unfortunate encumbrance. The latter are repulsed by jury duty, which divests them of their customary earnings and segregates them from their day to day surroundings (Schutz 108). This situation is exacerbated by the fact that jury duty involves having to undergo inordinate delays, listen to protracted discussions of a technical nature, and withstand repetitive legal speeches by the trial lawyers. The duration of the trial is a factor over which the jurors have no control. In general, jurors have to remain seated and pay attention to the proceedings, disregarding their boredom, fatigue or personal concerns (Schutz 109). Since their very origin, juries in England have been praised for their fundamental wisdom and good sense. Nevertheless, there has been criticism, in some quarters that juries tend to be irresponsible and incompetent. Specifically, juries have been criticised of being led astray by the evidence submitted by experts in science and medicine (Vidmar 137). There are many who decry the jury system and these include experts in the field of science. Such individuals have solely relied on appeals to common sense and narratives, instead of systematically collected data, with respect to their contention that a jury cannot deal in a competent manner with expert evidence. This area of study stands to benefit from further research, and the indications are that juries may not be as competent as a judge, in evaluating certain types of expert evidence. All the same, the extant research, which is quite extensive, clearly disproves this contention. In fact, the result of such research is that juries discharge their assigned duties in an exemplary manner. This sets aside the claim that juries rely blindly on expert testimony. Works Cited Appleby , Michael . "Expert evidence: the jury decides." The Safety & Health Practitioner 22. 7 (2004): 12. Print. ASIC v Rich . No. NSWSC 417. 2005. Bentley, David and Peter Lownds. "Low Template DNA." 15 February 2011. Web. Archbold Review. 26 October 2011 . Campbell v Hamlet . No. UKPC 19. 2005. 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International Journal of Evidence & Proof 13.2 (2009): 83 – 101. Print. Read More