07 April 2009

Admissibility of Expert Opinion Evidence

The Independent reports, Crackdown on expert witnesses,

"Scientists, doctors and other experts are to be stopped from giving misleading evidence in court after a series of miscarriages of justice involving unreliable testimony, under proposals published today.

The proposals being found in, "The Law Commission Consultation Paper No 190 THE ADMISSIBILITY OF EXPERT EVIDENCE IN CRIMINAL PROCEEDINGS IN ENGLAND AND WALES A New Approach to the Determination of Evidentiary Reliability A Consultation Paper".

Before any comments from me, a quotation from the conclusion of the paper,

"5.1 The present common law approach to the admissibility of expert evidence in criminal proceedings in England and Wales is unsatisfactory and should be replaced with a new statutory test."

A Couple of Points

Point 1)

Replacing the common law with statute tends towards setting the test in stone: the test needs to be sufficiently flexible for it to work.

My tuppence, with regard to the admissibility of Scientific expert opinion evidence - one needs to come up with the current definition of science. How can one decide upon the scientific basis of something if the word science is not defined. I stress the word current since what constitutes science has changed over time and is expected to change as time passes.

Murphy (2006) says,

"As long ago as the mid-sixteenth century, Saunders J was able to express pride in the readiness of the law to accept guidance from suitablbly qualified experts. In Buckley v Rice Thomas (1554) Plowd 118, 124, he said:

... if matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. ...

In Folkes v Chadd (1782) 3 Doug KB 157, Lord Mansfield confirmed that the opinion of scientific men on proven facts may be given by 'men of science within their own science'.

So, what did the word science mean in 1554, 1782 and what does it mean now (Folkes v Chadd has been reaffirmed in Turner (1975))?

Did it, or does it bear the same meaning?

Anyone with an understanding of the history of science and anyone who understands language will realise that the meanings of words change over time.

Point 2)

The consultation paper talks about incorporating the criteria found in Daubert for deciding the admissibility of scientific expert opinion evidence. If this was taken up, fingerprint evidence would not be admissible as evidence due to lack of validity.

Murphy P (2005). Murphy on Evidence. 9th ed, OUP: Oxford.

Update Why the Law Commission is worried about expert evidence

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