Harris Kamran Law Consultation Paper 7 July 2011 The Effectiveness Of a Screening Panel For Expert Evidence In Criminal Trials Criminal trials have been, of late, increasingly relying upon the presentation of expert evidence for decision making, especially in cases that involve complex technical, scientific or professional concepts or understanding1…
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This means that such evidence carries a considerable weight in jury decisions, especially if it goes in accordance with circumstantial evidence4. Indeed, the “aura of infallibility”5 regarding the scientific evidence is sometimes enough to polarise the court and sway it heavily in favour of one party6. Whereas the inclusion of expert evidence in criminal trials has proven to be very helpful in jury decisions, especially when it is as straightforward as DNA results7, there have been many disturbing miscarriages of justice in regard to either too much or very unreliable expert evidence, which has led to a growing skepticism8 among the legal bodies about the involvement of such information. This paper relays some of those problems and their causes, and proposes a solution in the form of a screening panel for the analysis of such evidence as a solution to these problems. Expert evidence, owing to its nature, is complex and technical, and is often beyond the intellectual capacity and understanding of the legal body, including the judge, jurors, and lawyers, because they have not been trained for such disciplines. This leads to the basic controversy that the judge and the jurors tend to side with the expert readily, given the “aura of infallibility”(No 5)9, as stated before. This trend alone can lead to grave miscarriages of justice, as it stems from two further issues. Firstly, it is not necessary that the expert opinion is based on reliable and authentic sources, and that the methodology of data collection and analysis is standardised and authentic. Often the scientific techniques for gathering evidence do not reach up to the mark10, or are not fully developed or researched in that region. This means that the legal body would be basing their decisions on unreliable and flawed information_ an inexcusable error in the legal discourse11. Secondly, the objectivity of the expert can be questionable. By law, the expert is expected to be an “independent” witness12, that is, unbiased and basing his statements only on the factual evidence. However, this might not be the case. The expert witness is, more often that not, also the expert adviser to one of the parties13, and as an adviser, by law, he is expected to abide by non-disclosure and loyalty to his party, aiming, at no time during the legal proceedings, to harm the image or motives of his party14. The same adviser, when presenting as a witness in court and submitting expert evidence, is expected, by law, to be impartial and adhere to complete disclosure of all the information on which he is basing his opinions, such that those facts should be the same on which the judge or the jurors would base their decisions15. As can be clearly seen, these two roles of the expert witness contradict each other and are paradoxical in nature, leading to many wrongful decisions by the court16, or at the least, eliciting a lot of controversies. Expert witnesses cost money, and the employment of multiple expert witnesses by the different parties means the legal proceedings become quite an expensive affair17. This problem exacerbates when the parties involved have different economic standings, leading to a disparity between the parties in relation to the accessibility of resources. This means that those who can afford it will be able to call more expert witnesses
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