The Value of Expert Witness - Literature review Example

Forensic Science Expert Witness Client Inserts His/her Name Client Inserts Grade Course Client Inserts Tutor’s Name 27/10/12 Introduction An expert legal witness is a special witness to a case from several perspectives. To start with, he/she is a professional widely informed by education, skills or experience and presents what he/she understands. Secondly, there is an array of expectations from both the witness and the case he/she presents. Such a witness is expected to: abide by the professional ethos of his/her job, present a professionally acceptable case before the court, and whether serving for the defense or plaintiff he/she must be impartial. “A biased witness is of limited value to a law court” (Daley, 1996). Anne (2008) observes that “If education, experience, professional training, and academics are among the factors that make an expert qualified, honesty, availability, affability, skill, and preparation are what make an expert ‘good’.” She says, an expert witness should be flexible enough to consider the interest of the jury, humble enough to provide a report in a language that is understood by all parties in the case, honest enough to provide only information within area of expertise, considerate enough to accept other perspectives of his case as presented by an opposite lawyer in court and professional enough to consider and review weaknesses of the presentation. He /She should also be able to concede facts suggested against presentation made by him/her. Daley (1996) states that it is necessary for the expert witness to have pre-trial preparation so as to “refresh the level of expertise, enhance the quality of the opinion expressed, reduce stress and save time”. It is therefore worth noting that giving of expert witness in a court case is crucial and demands a lot from the expert before and during case presentation. This is crucial in determining the admissibility of a case. This paper reviews the value of expert witness providing evidence to support a personal opinion in a court case, the need by the witness to identify conditions that may annul reliability of the opinion and evidence presented and need for impartiality. The Value of Evidence In Support Of an Expert Opinion in Court This paper agrees that a witness giving an expert opinion in court ought to present evidence in defence of the opinion given. The essence of engaging witnesses in court proceedings is to provide factual or opinion evidence. The evidence is meant to inform the jury of the extent of the case enabling the judge to determine facts and issues in the case (Royal College of veterinary surgeons, 2012). It is therefore important that an expert invited to give an opinion before a law court supports claims made using substantial evidence. It should also be observed that law courts have authority to impose sanctions or penalties on individuals who provide unsupported evidence in a case. Provision of the evidence will ensure acceptance by all parties of the outcome of the case minimising petitions and appeals. Given the strength of witness evidence in determining the interpretations and eventual outcome of a case, the evidence given (either factual or opinion) should be proven beyond any reasonable doubt of truce. The expert must therefore bear specific attributes (Duffy, 2012). These are “self-confidence and the ability to inspire and command confidence in others, particularly in the witness box; the ability to give a concise opinion which can be understood by lay people and, the ability quickly and promptly to adapt to changing information” (Royal College of veterinary surgeons, 2012). Generally, the courts direct expert witnesses of when to present case, what to expect in the court room and the legal implications of evidence. An expert court witness needs also to make prior preparations and observe certain conditions of the evidence so as to remain relevant to the expectation of the court. According to Anne (2008) & Wall (2009; pgs. 2-5), an expert witness should: build a close relationship with the prosecution team and not the judge, give opinion only of what he/she knows to ascertain confidence, prepare well in advance and review the presentation before presenting it to court, and ensure he/she abides by the demands of the court. The Supreme Court of Australia (2012) asserts that an expert witness needs to collect as much valuable information as possible prior to the presentation. While presenting the case, he/she should ensure that the court environment supports a two way communication. He/She should address the court confidently paying attention to the body language and the interest of the jury. The presentation should be done in a relaxed environment. Since the court expects a high level of independence of ideas from an expert witness, there should be prior peer consultation to ensure the contents prepared are very accurate. The witness also need engage a lawyer to ensure compliance with the court requirements (Wall, 2009). Anne (2008) gives similar views to this effect. She says: Dress neatly, be polite and respectful to the judge, the jury, the attorneys, the plaintiff, and the defendant, maintain privacy in and out of the courtroom, be prepared for your testimony, recognizing that records may not be available, know the basis of the case as well as your limits, work with the attorney in preparing for the case, maintain a pleasant tone and demeanour, listen to the questions and answer them honestly, don’t be argumentative or non-responsive and make sure the opinions you express at trial are consistent with those you expressed during the discovery deposition and in written documents. It is equally important to observe some of the challenges an expert witness is likely to meet in presenting evidence. First, the question of privacy and confidentiliality of expert report presented. Secondly, in most cases, expert witnesses face criticism upon the completion of a case regardless of the final outcome. There is lack of adequate cooperation with defence or prosecution jury since the information from a witness is stated as important in a case. Moreover, accountability to the professional body also limits the expression of personal views when giving an expert opinion (Wheatley, 2011). Incompetence and inability to communicate effectively while delivery court evidence is equally limiting factors. The above factors seem to limit the independence of an expert opinion in a law court. They may also create bias in the witness since he/she will endeavour to protect personal interests alongside interest of the case under mention. Witnesses should therefore be protected and courts to adopt mechanisms that ensure their freedom from criticism and independence of their ideas. Importance of Identifying Factors That May Hinder Reliability of Evidence It is important for an expert witness to identify factors that may limit the reliability of evidence he/she gives in supporting an opinion in court. While the scientific approach to finding truth behind an opinion calls for hypothetical research and analysis of findings, the court process relies on arguments presented before it to determine the admissibility of a case. (Croft, 2005; pg 34) observes that four factors define the judge’s argument on the reliability of scientific findings. These are: testability of the theory employed in the evidence, whether the theory used has been reviewed, the known or probable error rate of the method used, and the degree of acceptance of the method used within the scientific community. In several cases, law contrast the principles of science in arriving at conclusions to cases. Saxe & Meredith (2012) argue that “… even when good science exists, the law struggles to properly incorporate it, and sometimes science can’t (yet?) answer the questions the courts are interested in.” Nonetheless, the rules of evidence should work to ensure justice, not stand in its way. Two ideas define the diverse rules on the admissibility of justice. “…the evidence must be useful in the sense of tending to prove a fact relevant to the issues in the case and it must be reasonably reliable” (Saxe & Meredith, 2012; Duffy) & (Duffy, 2012). The expert witness is expected to submit scientific facts on the case but it is upon the court to determine, by argument, the reliability of this evidence. An expert witness therefore needs to identify, in his case, the conflicting ideas of nature and law and incorporate the different views in the witness evidence. To this extent, an expert witness needs a legal officer who will help in examining the evidence against the legal views. The legal expert may also help the witness expert present a case in a way that will be consistent with the legal argument scale. This is important because most judges and court officials do not understand the scientific principles with regard to evidence support. Impartiality of An Expert Witness An expert witness is a professional and therefore abides by the professional ethics of his/her trade. Impartiality is an important aspect of witness in a law case. It is not only the professional ethos that call for impartiality in handling public affairs, the law courts also have stringent policy governing the issuance of bias opinion while serving as a court witness. Tufnell et.al, (1996; pg. 4) & Smith (2001) identifies ten elements that need to be considered in a law court setting by an expert witness. These include: understanding what constitute a multiple relationship, protection of confidentiality, respect for other people independence, understanding of specific responsibility in a case, identifying clients the roles they play in the presentation, documentation of all relevant information, limitation to area of expertise, sticking to the evidence, and accuracy in presentation. The above ethics will ensure impartiality of the witness and bring confidence to the jury and judge on the admissibility of the evidence given in support of the case. abiding by the professional ethics not only help the court officials interpret conditions for the case, but is also to protect the witness against eventual claim of unprofessional nature of the evidence provided. Forensic findings of an investigation by an expert witness in a legal proceeding should be demonstrated clearly. This is not only important in supporting claims by the witness, but the findings help cast any doubt over the reliability of evidence presented. Forensic evidence is widely accepted as a sure way of justifying the validity of an expert opinion. This is because, the processes through which the findings are not easily manipulated. The reports are reliable since they are consistent with scientific principles. McClure (2007), observes that the most important thing in a courtroom with forensic evidence is the level at which the judge and the jury understand it. It they understand it accurately, then “they are able to apply the relevant legal standard to that case”. He says that the most important aspect of forensic evidence in court is the way it is presented. In a case where forensic evidence is the only reliable source of ascertaining guilt, the expert may have difficult time interpreting the evidence to satisfy the judge and jury. In such a case, the forensic analysis must be accurately presented by the expert. It is also important that the expert draw conclusions that are not amplified beyond the level of the evidence. The jury and judge must also be able to arrive at conclusion without exaggerating the evidence. In conclusion, this paper reviewed the array of environment in which expert witnesses in a courtroom give opinions find themselves. Firstly, the paper observes that it is important for an expert witness in a court room to state the evidence he/she relies upon in giving an opinion. This will not only create a level play ground in court where the plaintiff and defendant argue their cases, but will also ensure reliability of the expert opinion. Secondly, the expert witness needs to identify factors of the case that may affect the reliability of his/her evidence. This is important in protecting the ethics of his/her profession, protecting interests of all parties in the case and ensuring that he/she is not subject to blame by any of the parties in the case. This assessment will equip the witness with necessary skills and knowledge on handling of evidence. The witness will also be able to adequately prepare prior to the courtroom testimony and eventually present reliable evidence. The question of impartiality of a legal witness is crucial to the admissibility of the evidence he/she present. Cross examination of the witness by an advocate may expose elements of bias in a presentation. This can only create embarrassment to the expert witness causing lack of respect to the expert and his/her profession al large. Geller (2008) observes that forensic science “is not quite universally respected yet, but it is clearly maturing”. This could be attributed to the nature in which forensic witnesses handle cases in court. It is therefore important that the witness remain impartial and stick only to elements of the evidence within his/her competence. The forensic evidence must be presented accurately and the presenter must be articulate enough to limit bias by the court officers. This will ensure that justice is upheld. List of References Ann Mary. April 2008. Three perspectives on expert witness testimony. October 19, 2012. [online]. http://www.aaos.org/news/aaosnow/apr08/managing4.asp Croft, Arthur. September 14, 2005. The Expert Witness and the Daubert Challenge.October 19, 2012. Daley Timothy. February15, 1996. Guidelines For The Expert Witness. October 19, 2012. [online]. http://www.lectlaw.com/files/exp27.htm . Duffy Colleen D. 2012.The admissibility of Expert Opinion and the Bases of Expert Opinion in Sex offender civil management Trials in New York. October 19, 2012 Geller, Jeffrey. April, 2008. Understanding Trauma: Integrating Biological, Clinical and Cultural Perspectives. Vol. 59. No. 4. October 19, 2012. McClure David. November 2007. Focus Group on Scientific and Forensic Evidence in the Courtroom. October 20, 2012. [online] https://www.ncjrs.gov/pdffiles1/nij/grants/220692.pdf Supreme Court of Victoria, Australia. October 16, 2012. Giving Evidence. October 20, 2012. [online] http://www.justice.vic.gov.au/home/courts/going+to+court/giving+evidence/ Saxe Dianne, Meredith James. August 16, 2012. Proof and Causation: When Courts And Scientist Disagree. October 19, 2012. [Online] http://www.slaw.ca/2012/08/16/proof-and-causation-when-courts-and-scientists-disagree/ Smith Deborah. January 2003. Ways practitioners can avoid frequent ethical pitfalls. Vol 34, No. 1. October 20, 2012. [online) http://www.apa.org/monitor/jan03/10ways.aspx The Royal College of Veterinary Surgeons. April 12, 2012. Giving evidence for court. October 19, 2012. [Online]. https://www.rcvs.org.uk/advice-and-guidance/code-of-professional-conduct-for-veterinary-nurses/supporting-guidance/giving-evidence-for-court/ Tuffnell Guinevere, Cottrell David & Georgiades Daphne. 1996. Good Practice' for Expert Witnesses. October19, 2012. Wall Wilson. 2009. The Expert Forensic Scientist in Court. October 19, 2012. Wheatley, Ethan. May 17, 2011. Medical protection organization. High Court recognises challenges faced by child protection expert witnesses. October 19, 2012. [Online].http://www.medicalprotection.org/uk/press-releases/High-court-recognises-challenges-faced-by-child-protection-expert-witnesses Read More

The Supreme Court of Australia (2012) asserts that an expert witness needs to collect as much valuable information as possible prior to the presentation. While presenting the case, he/she should ensure that the court environment supports a two way communication. He/She should address the court confidently paying attention to the body language and the interest of the jury. The presentation should be done in a relaxed environment. Since the court expects a high level of independence of ideas from an expert witness, there should be prior peer consultation to ensure the contents prepared are very accurate.

The witness also need engage a lawyer to ensure compliance with the court requirements (Wall, 2009). Anne (2008) gives similar views to this effect. She says: Dress neatly, be polite and respectful to the judge, the jury, the attorneys, the plaintiff, and the defendant, maintain privacy in and out of the courtroom, be prepared for your testimony, recognizing that records may not be available, know the basis of the case as well as your limits, work with the attorney in preparing for the case, maintain a pleasant tone and demeanour, listen to the questions and answer them honestly, don’t be argumentative or non-responsive and make sure the opinions you express at trial are consistent with those you expressed during the discovery deposition and in written documents.

It is equally important to observe some of the challenges an expert witness is likely to meet in presenting evidence. First, the question of privacy and confidentiliality of expert report presented. Secondly, in most cases, expert witnesses face criticism upon the completion of a case regardless of the final outcome. There is lack of adequate cooperation with defence or prosecution jury since the information from a witness is stated as important in a case. Moreover, accountability to the professional body also limits the expression of personal views when giving an expert opinion (Wheatley, 2011).

Incompetence and inability to communicate effectively while delivery court evidence is equally limiting factors. The above factors seem to limit the independence of an expert opinion in a law court. They may also create bias in the witness since he/she will endeavour to protect personal interests alongside interest of the case under mention. Witnesses should therefore be protected and courts to adopt mechanisms that ensure their freedom from criticism and independence of their ideas. Importance of Identifying Factors That May Hinder Reliability of Evidence It is important for an expert witness to identify factors that may limit the reliability of evidence he/she gives in supporting an opinion in court.

While the scientific approach to finding truth behind an opinion calls for hypothetical research and analysis of findings, the court process relies on arguments presented before it to determine the admissibility of a case. (Croft, 2005; pg 34) observes that four factors define the judge’s argument on the reliability of scientific findings. These are: testability of the theory employed in the evidence, whether the theory used has been reviewed, the known or probable error rate of the method used, and the degree of acceptance of the method used within the scientific community.

In several cases, law contrast the principles of science in arriving at conclusions to cases. Saxe & Meredith (2012) argue that “… even when good science exists, the law struggles to properly incorporate it, and sometimes science can’t (yet?) answer the questions the courts are interested in.” Nonetheless, the rules of evidence should work to ensure justice, not stand in its way. Two ideas define the diverse rules on the admissibility of justice. “…the evidence must be useful in the sense of tending to prove a fact relevant to the issues in the case and it must be reasonably reliable” (Saxe & Meredith, 2012; Duffy) & (Duffy, 2012).

The expert witness is expected to submit scientific facts on the case but it is upon the court to determine, by argument, the reliability of this evidence.

Read More