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Expert Witnesses Notes

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Expert Witnesses

Adjudication on expert matter than by non-expert judges Exception to prohibition on opinion evidence o Expert evidence generally based on evidence presented to the expert, or assumptions — rather than on actual observations o Usually made to order o Unlike ordinary witnesses, the number of possible witnesses is limited only by the number of experts in the field
 permits imbalance between parties with different resources
 permits evidence-shopping o IE Experts are not really "witnesses" in the traditional sense Need for experts — courts not well equipped to resolve disputes without them

Role of the Expert Witness
 Ikarian Reefer per Creswell J — duties and responsibilities of witnesses are: o Must be and must be seen to be independent o Must be unbiased and should not assume role of advocate o Clear description of the facts or assumptions on which evidence is based o Make clear when outside expertise o qualify opinion with level of certainty o Must indicate if change of opinion o All information on which opinion based should be disclosed to the other side
 Role o Assisting court to understand & assess the factual evidence o Generate evidence — eg testing samples, DNA, conducting studies —
contributing to factual record o Provide opinion — bias is meaningless unless it is extraneous (financial) in nature
 Overriding duty is to assist the court in understanding the evidence
 No immunity from suit for expert witnesses: Jones v Kaney [2011] UKSC 13 (expert admitted to signing off on joint evidence report without reading it) o Advocates required to be partisan witnesses required to be unbiased o Deters credible expert witnesses — concerned about liability o Duty to client is of due care, skill & diligence — same as duty to court Qualification
 USSC Daubert — must be (a) scientific knowledge and (b) will assist trier of fact o Whether opinion / theory / technique — has been tested, subjected to peer review, known or potential error rate, general acceptance can be important & known technique which attracts minimal support can properly be viewed with scepticism o Admissibility more important when you have a jury?

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