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Experts Warnings And Appeals Notes

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Supervision 9 - Experts, Warnings and Appeals The opinion rule and the presentation of expert evidence
? General rule is that opinion evidence excluded.
? Exceptions to the rule out of necessity: o Evidence of identity. o Evidence of a witness's own feelings (Hendy). o Handwriting proved by non-expert (Tilley). o Matters of impression and narrative. Expert opinion
? Regulated by CPR, Part 19.
? Admissible only in relation to matters of fact (e.g. Cockburn).
? Wide range of expert fields (e.g. Stockwell / Otway / Cooper / Robb).
? New areas of learning too speculative (e.g. Gilfoyle). o But experts in earprints accepted in Dallagher.
? Must show relevant professional qualifications. o Solicitor who had hobby of handwriting sufficient in Silverlock. o Policeman able to give evidence on likelihood of collision having served in traffic division for 15 years (Oakley). o Evidence of lip-readers admitted in Luttrell. Test:
? It must be demonstrated that study or experience will give a witness's opinion an authority that the opinion of one not so qualified will lack; and
? Does subject matter of the opinion form part of a body or knowledge that is sufficiently organised to be accepted as a reliable body of knowledge or experience?
? The witness must be so qualified to express that opinion.
? Rejected requirement of reliability.
? Law Commission support statutory reliability test. o Edmond and Roberts suggest setting up a panel to advise on reliability at admissibility stage.
? Reject approaches in Frye and Daubert.
? Court will not refuse expert evidence if approach is contentious (e.g. Robb).
? Law Commission recommended that test of admissibility be put on statutory footing. Rejected on grounds of cost.
? If question falls outside scope of particular witness's expertise, opinion ought not to be received (Nightingale v Biffen).
? Expert opinion will not be needed where court capable of drawing inferences for itself (e.g. Ugoh).
? Danger of using psychiatrists or psychologists (Turner). o But people with IQ of less than 70 will require expert evidence (Henry). o Cannot merely be used to verify reliability of a witness (Robinson). o Judge must tell jury they are not obliged to accept expert's view (O'Brien, Hall and Sherwood).

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Cannings suggests that where there is conflicting expert evidence, there must be corroboration by independent evidence. o Denounced in Kai-Whitewind. Conflicting evidence fine. Courts occasionally admitted testimony of psychologists to explain behaviour of parties who could be described as 'normal' (Lowery and King v R). o Turner stressed that Lowery is exceptional. Experts not being able to deliver opinion on the 'ultimate issue' no longer a rule (Stockwell / Fitzpatrick). Direction must be given that jury do not have to accept evidence of expert's own opinion (Hardy). Expert must inform court of sources upon which he relies (CJA 2003, s.127 / Abadom). o Must make it clear if he is advancing a hypothesis (Re AB). General suspicion to the way in which statistical evidence is presented to juries (Clark (Sally)). Obiter would have quashed - once in every 100 years. o Talk in terms of likelihood, rather than using figures. General test: o Necessary (Robinson)?
o Expert (Silverlock) o Reliability of field (Luttrell)
? Require two or more people in the field (Anderson). o Impartial (CPR 19.2)

Corroboration
? English law has no general principle that a defendant cannot be convicted on a single piece of uncorroborated evidence (Criminal Justice and Public Order Act 1994). o In Scotland cannot convict on one piece of evidence.
? But held in Makanjuola that direction may still be given in appropriate cases. o Witness's evidence might be tainted by improper motive (Benedetto). o Patients detained in a secure hospital complained of illtreatment (Spencer). o Witness retracted accusation then retracted retraction in Walker.
? Prosecution can call a witness when they want to rely on one part of his evidence but not another (Cairns).
? Careful jury direction needed for cell confessions (Pringle /
Benedetto / Stone - conviction for murder rested substantially on cell confession).
? Lewis supports evidence-based approach to caution warnings.
? Beck test given when witness tainted with improper motive: o (a) General duty to put the defence case fairly to the jury and to draw attention to items of the prosecution case which are actually or potentially unreliable; and o (b) In specific cases, to give a warning about certain witnesses who may have an interest of their own to serve in giving evidence

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