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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).
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)
? 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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