Expert Witness in Law Court - Essay Example

Expert Witness in law court Name Course Tutor Date Expert witness in law court Introduction An expert witness sometimes referred to as professional witness or judicial expert is a court witness who by virtue of his education, skills, experience or training is believed to have the knowledge and skills in a certain field more than any ordinary person. His expertise is sufficient in that others may legally rely upon him in giving a witness’s specialized opinion about a particular fact issue or evidence in his field (Redmayne, Mike, 2001).Moreover, these experts witness can also give expert evidence whenever necessary about a fact issue within the domain of their expertise. In most cases, the constitution law that government many nations have a provision that a witness having a particular knowledge in a particular field can be called upon to provide his/her own opinion in an area being examined by the court. The witness is called by the court to elaborate on that particular area to enable the jury to come up with a credible judgment over a certain case. Therefore, the major role of expert witness in English law is to provide a detailed explanation to the court on difficult and technical issues in both civil and criminal cases to assist in fact finding process (Lawrence &Munby 2011:8). This paper critically examines the issue of expert witness; it discusses the importance of an expert witness in stating the evidence he based on in giving out his opinion on the case available. It shows the need of the expert witness to state the factors that may limit the reliability of his opinion. Furthermore, the paper will discuss the requirements of the experts witness to be impartial in giving his opinion and the importance of expressing the correct forensic findings to enable the jury court to understand the opinion. The use of expert witness in court was first encountered in 1782 during the hearing of the case relating to the setting up of Wells harbor in Norfolk where the jury accepted evidence from a civil engineer John Smeaton to clarify or explain some issues related to the case to enable the judges to make the correct judgment. This case was the root of the expert witness law and it was included in the English law. However, it was an unusual feature in the court cases until the year 1953 in Davie Vs Magistrates of Edinburgh case of 1953 and was included in the Scots law. (Lawrence &Munby 2011: 57) Today, the tribunals have assigned expert witness many duties and responsibilities, the roles of the expert witnesses have expanded though, they have been restricted to circumstances where the experts are unavoidable. The field of scientific skills and knowledge has continued to expand due the advent of forensic evidence hence such instances are now common in the law courts. The common areas where experts’ witnesses are needed in courts to offer their opinions are; DNA genetic examination, fingerprinting identification, blood type tests, ballistics, blood-alcohol calculation levels etc (Lawrence &Munby 2011:24). These are the common areas in serious criminal cases. In civil cases, we have the accidents analysis, forensic engineers and forensic accountants. These areas need qualified experts who have all the sufficient information to examine a certain situation and explain the facts to the jury judges to reach on their decision. These areas are least controversial because the experts base their testimony on scientific facts, which are generally accepted since other experts can again reproduce them if there is a suspicion that there were some sort of fraudulent activities in the examination of the evidence. Therefore, any opinion presented by any expert that base its facts on the scientific facts is widely admissible by the court and the judges can rely on it when making the final judgment of a particular case. Guidelines to the jury in accepting experts’ testimony In accepting the scientific expert witness testimony, we have what we call the Daubert standard. This is a rule of evidence regarding the admissibility of the scientific expert witness testimony. This rule of evidence is applied in American federal legal proceedings. Seven members of the court agreed on certain guidelines in admitting the scientific expert witness testimony. First, they agreed that the judge should be a gatekeeper (Redmayne 2001:32). This implies that the judges have the duty of ensuring that the testimony given by the expert witness truly proceeds from scientific knowledge. Thus, this responsibility rests on the judges, through their experience or knowledge they should be in a position to determine if the testimony complies with this rule. Secondly, there is relevance and reliability. This guideline requires that the jury has to ensure that the expert’s testimony is quite relevant to the task or rests on the reliable foundation (Redmayne 2001:17). The judges must find it more likely from their deduction than just looking on the methods used by the expert are assuming that he must have used the correct methods. Thirdly, the judges should be in a position to ascertain whether the expert used the scientific knowledge i.e. if he has applied properly the scientific methodology in analyzing the situation before giving his opinion or testimony. The last guideline is the examination of the factors relevant in giving out his testimony. We have some factors the judges can easily examine to determine whether what the expert is proposing is correct or not (Redmayne 2001:17). These factors include the empirical testing whether the theory is falsifiable, whether the testimony has been subjected to peer review, whether there is the existence of the standards and control of the of its operation. Moreover, the degree to which the theory and technique is generally accepted by the relevant scientific community. Importance of stating the forensic evidence An expert witness is required to state clearly the evidence he based on his opinion. Many benefits or importances accrue to him and to the jury court why he should do so. The first importance why the expert witness should state the evidence is to help the jury to prove his independence (Horton &Mercer 2007: 2). The independence of an expert when forming his opinion on a particular issue is considered greatly important by the court. When the court beliefs and proves that the opinion was formed independently without the undue influence from any other party, then the evidence would be accepted as credible ones. Therefore, when an expert states his evidence in court and forms an opinion independently, he would be complying with the rules that govern the expert witness process. Secondly, the importance of stating the evidence in court is seeking admissibility by the court. This means that when one states the evidences clearly and truthfully, the opinion stated by the expert would be accepted by the court (Horton &Mercer 2007: 2). A part from being qualified as an expert admissible by the court, the expert should also prove this by stating clear evidence to before the jury for his opinion to be admissible. This means that experts witnesses are required to strive as much as possible to state tangible evidence that satisfy the judges for their opinion arrived on to be admissible. Another importance of stating the evidence in court is that experts have a privilege of disclosing all the materials used in preparing the opinion (Tate, Johnson &Kim, n. d: 3). In the law, there is a provision which respect the materials compiled by expert to be presented to the jury and the opposing party. Therefore, when the opposing party tends to argue very much about a particular issue, the expert has a right to disclose these materials even if they seem to be demeaning to the opposing party. The expert would not be sued in court for disclosure of such materials. Thus, the expert uses this privilege to defend himself fully beyond any doubt. When the expert states the evidence in the court, they would be used by the court to test the relevance of the issue (Horton &Mercer 2007: 3). The judges would look at the evidence listen to the explanation of the expert and make a wise conclusion that will enhance an impartial judgment. In most cases, the judges are not well versed with some knowledge in various technical field, they find it hard to just make a judgment when a certain issue is presented to them. Thus, when the expert in this field is called to explain to them the facts about the issue, they now get the really picture on how things ought to be and end up making the correct judgment. So it is very much important for an expert witness to give the evidence he based his opinion to the court. Moreover, when an expert presents to the court the evidence he used to make his opinion, he increases the reliability of opinion (Tate, Johnson &Kim, n. d: 3). There is no doubt that well stated and true evidence provided by the expert in court would be accepted in court. When the evidences are reliable, it means that the judges can depend upon them as a basis of making their own final decision. This means that it is important for an expert witness to provide true evidence that can be proved by other similar experts for his opinion to be relied upon by the court. Reliability f the opinion would help in correct judgment. How an expert witness can ensure impartiality For an expert witness to be seen impartial in giving his opinion to the tribunal, he/she must observe some issues in the due process of presenting his opinion. Firstly, the expert evidence presented to the jury should be seen to be independent (Horton &Mercer 2007: 11). The jury should justify that any other party in forming his evidence did not influence the expert witness. The expert can ensure this by being quite independent and carrying out his investigation according to his knowledge and experience. He should be able to explain to the jury the material facts exactly the way they are so that he eliminates all the doubts by the jury to have been influenced by external parties. In his explanation, he should not show some sort of favourism of one party but he should just remain on point and leave the judgment to be done by the judges. The second way the expert witness to ensure impartiality in providing his opinion in court is that he provides independent assistance to the court by being objective in giving his opinion to the matters that falls within his expertise (Horton &Mercer 2007: 11). In other terms, he should not assume the duties of the advocates but should show the court his analysis of the issue and disclose all the facts that surround the issue in relation to his expertise. He should be ready and willing to explain every detail in perfection to remove all the doubts. Thus, by sticking to the principles, he would probably provide impartial evidence that would actually allow the judges to make their true judgment of the case. Thirdly, to be seen impartial in his evidence, the expert witness should be in a position to state the facts or the underlying assumptions on which he has based his opinion (Horton &Mercer 2007: 11). The assumption stated should concur with the concluded opinion. Therefore, he should be careful not to confuse the facts thus when explaining to the jury, one should be able to see the facts clearly. As an expert, he should be in a position to tell the jury some technicalities that underlie the case. Once the judges justify that actually the expert h one his task satisfactorily, they would conclude that the evidence presented also must be credible. Hence, the witness was impartial in his testifying. Fourthly, the expert witness to be competent and impartial, he should be ready to make it clear to the court if a particular question or issue falls outside his expertise (Horton &Mercer 2007: 11). In other words, the expert should not struggle to answer a particular question directed to him if he is sure that that question does not concern him. In case he fumbles to answer an irrelevant question, he might make some statements, which can easily mislead the judges in their decision making hence no impartiality. This means that the expert witness should know well his boundaries, as a specialist in any particular field so that he can deliver is duty efficiently as required by the court. In ensuring impartiality in his opinion, the expert witness should carry out his research on the subject issue thoroughly. (Horton &Mercer 2007: 11). In case he feels that the opinion was not properly researched by considering that certain data in unavailable, then he should indicate to the court that the opinion is not sufficient to be relied upon (Chapter 18 n.d:538). Moreover, if there are some changes to the report, he should communicate immediately to the other party immediately to avoid suspicion. (Horton &Mercer 2007: 11). This means that impartiality will only come when the expert himself is satisfied beyond reasonable doubt that the facts he has to present to the court are sufficient and he can explain everything in details. Therefore, thorough research on the subject matter is one of the ways in which an expert witness can ensure impartiality in giving their evidence to the court judges. Lastly, the law requires the expert witnesses should give their report according to the requirements set in practice direction 35 (Tate, Johnson &Kim, n. d: 3).This direction states that an expert should give a report in details about the expertise’s qualifications; details of any literature on any materials relied on and show the instruction given. Moreover, in his report, he should state who carried any experiment or test under his supervision. The expert should be ready to give tangible reasons for his opinion on the subject. In his report, he should also verify with a statement of truth. Therefore, when any expert is able to do all these things, it is obvious that his opinion would be impartial and nobody would raise questions o the same. Factors limiting the reliability of the opinion Some factors may limit the reliability of the court on opinion given by the expert witness. One of the factors is that when the opinion is not based on the subject matter of the case (Lawrence &Munby 2011: 60).When the expert has just forged some information from irrelevant sources and included it in the evidence, the court would probably not rely on such opinions. Secondly, when the opinion given is based on the inferences of the expert about a certain issue (Lawrence &Munby 2011: 60). The law requires that the expert witness should give the exact facts which he himself witnessed but not from how he perceives the issue. Thirdly, the court would rely on the opinion that is presented by the qualified expert who is believed to be competent and has the experience and knowledge in that particular field. (Lawrence &Munby 2011: 60). Thus, the courts do not accept the evidence from any person who is unqualified to provide the evidence on a particular issue. Another factor that can limit the reliability of the opinion of the expert is if the expert appears or behaves as id he way influence by the external party in forming his opinion. This means that the court prefer an opinion that was formed by an independent expert. Conclusion In conclusion, the issue of expert witness is not new in judicial hearings. The concept started long ago in 18th century and it has taken roots into the current judicial proceedings. Some circumstances compel the courts to require an expert witness; the main role of this expert is to explain the technical facts that underlie a certain issue in a particular field where the judges have little knowledge. The court does not call just an ordinary person to be a witness but a specialized individual who has good experience and knowledge about the issue in question. For an opinion of an expert to be considered and relied upon by the court, many factors are put into consideration. The expert is expected to give the evidence he relied on in forming his opinion. The use of expert witnesses in court is being adopted by many courts because most criminal and civil cases nowadays require technical analysis in order to come up with the fair judgment. Bibliography Chapter 18. Opinion evidence. Accessed on web. 11 Sept 2012. Retrieved from http://www.oup.com/uk/orc/bin/9780199558346/keane8e_ch18.pdf Great Britain law commission. (2009). The admissibility of expert evidence in criminal proceeding in England and Wales. A new approach to the determination of the evidentiary reliability. The stationery office. UK. Lawrence, James &Munby, Munby. (2011). Expert evidence in criminal proceedings in England and Wales. Stationery office publisher. UK. Horton William &Mercer, Michael (2007). Expert witness evidence in civil cases. Accessed on web. 11th Sept 2012. Retrieved from http://www.wghlaw.com/documents/Expert%20Witness160907.doc Redmayne, Mike. (2001).Expert evidence and criminal justice. Oxford University press. UK. Tate, John. Johnson Clark &Kim, Michael. (n. d). Expert report. Accessed on web. 11 Sept 2012. Retrieved from http://www.stites.com/media/pnc/5/media.1255.pdf Read More