Expert Evidence

Question	Answer
Judge Learned Hand- Historical and Pratical Considerations Regarding EE	Where conflicts- setting the jury to decide where docs disagree. How can jury decided between two statements based on experience beyond own- this is reason EE is needed at all.
Law Commission and Super Experts	These can be called to resolve conflicts of EE. Costly, time consuming, doubt how much judges would use this power?
R v Gay and Gay	Salt poisoning case. Conflicts between EE, both based on speculative foundations. On retrial, acquitted. why? jury more convinced or pure confusion?
Michael Mansfield QC- leading barrister for D;s in Gay and Gay	"impossible task for jury to chose between accredited experts. shouldn't prosecute in first place"
Koyera, Russano and McAuliff	US studies suggest that juries not competent to resolve conflicts between EE, most jurors unable to recognised flawed EE
Cooper, Bennet and Sukell	were able to demonstrate that as jurors became exposed to increasingly complex EE, decisions became based more on peripheral processing cues eg how they were dressed.
Ways to resolve conflicts of EE	Have jurors made up of experts? or The Cannings route, don't prosecute
R v Henderson	CofA attempted to offer guidance on how juries should approach conflicting EE in infant harm cases: shouldn't based on extraneous factors, reach decision via rational process, judge guide jury and hold hand when summing up,
Daubert v Merrell Dow Pharmecuticals	US gatekeeping test, judges have to give greater scrutiny to whether EE sufficiently reliable to justify admission
Draft Criminal Evidence Experts Bill	Reliability matters, set out in the handout.
S.4 Draft Criminal Evidence and Experts Bill	Reliability meaning- fundamentally judge has to arrive at whether EE sufficiently reliable to be admitted. if yes, soundly based and opinion is warranted.
Schedule Relaibilty Factors part 1- s.1 (c)	degree of precision or margin of uncertainty eg in Dallagher, could have been a factor that judge felt partiucalar weight should have been attached to
s.1(d) Peer Review	Eg in Robb- expert hadn't published any material as to reliability of technique
s.1(g)	eg Robb and auditory techniques, range of EE, whether experts preference for the opinon has been explained.
s.1(h)	Robb, most experts used acoustic techniques as well, EE here didn;t, reasons not properly explained.
Merits to the Draft Criminal Expert Bill.	codifies certain areas of law, new reliability-based admissibility test before it goes to jury, procedural rules, give judges guidance, make it clearer for jury, increase the standard of EE, and reduce miscarriages of justice
Major Concerns with the Draft Bill	Judges/ barristers may not be qualified, they're not experts, empirical research in US says judges struggle, Law commission say providing retraining, not an issue.
The Ultimate Issue Rule	can EE tell the fact finder what it's opinion should be on the issue in question?
Civil cases and ultimate issue rule	s.3 Civil Evidence Act- confirms role of EE not limited to assisting court to arrive at opinion on own.
R v Stockwell	Lord Taylor- if such a prohibition exists on not giving opinion, rule matter of form not substance, routinely ignored.
Exception to this ambivalence from the strict position on giving opinon	Where expert tries to tell jury that D is guilty of crime in question, usurp role of jury.
R v Jefferies	Police stated that D was "guilty as charged". couldn't do this, overstepped mark, question was one for jury.
R v Doheny	CofA said in terms of Dna, expert restricted to telling jury the frequency with which DNA will be present in the population at large, not likelihood of it being D's DNA at crime scene.
Hearsay Issues and EE.	Prima facie inadmissible. However not usually a problem here.
s.127 CJA 2003-	Can give opinion to court based on primary facts by another person providing court feel it's in the interest of justice. If not have to get that person in to represent the facts themselves.
R v Abadom	Common law exception to HS rule, here Glass fragments, drew on Home Office stats. Admissable.
S.118 (1) CJA	confirms common law exception to HS rule with regards to EE retained.
Criminal Procedure Rules Part 33	EE role to help the court achieve the overriding objective of finding the trust by giving unbiased opinions, not to act in partisan way.
Civil Procedure Rules Part 35	duty to court as a whole supersedes any obligation to whom they have received instruction.
R v Clark (sally)	Crown e on likelihood of two cot deaths in one family, misrepresented the facts
Confliicts of EE	Jury responsible for resolving these, up to jury to decide which to accept.
R v Sander	Only case where judge can direct jury have to accept evidence: unequivocal medical evidence favourable to D should be accepted by jury (Watkins LJ)
R v Cannings	Pros case that had smothered two of three children, third had also died. no extraneous evidence and little circumstantial. Appeal allowed to adduce further EE highlighting division between experts.
R v Cannings- Judge LJ	situation where 2/ more infant deaths in family, serious disagreement over cause death, natural causes can;t be excluded, pros shouldn't be started unless corroborating evidence extraneous to EE.
R v Kai- Whitewind	Tried to push Cannings where single infant death and extraneous evidence, overblown Cannings argument dismissed, clear restricted to similar facts, cases like present.
Expert Evidence in Criminal Proceedings In England and Wales- Law Commission Reports.	noted potential miscarriages for justice, current approach provides uncertainty.
R v Chard	Roskill LJ, where dealing with normal mind, can't call evidence as to what intention may have been
R v Smith	Automatism, jury may need EE to help
R v Masih	If D had IQ below 69, classed as mentally defective. Jury would need to be enlightened as to working of mind outside knowledge of own. Here, IQ 72, not admissible. arbitrary ap of rule?
R v Turner	Credibility normally a matter which fact finder competent to determine themselves
Toohey v Met Police Commisioner	Lord Pearce- where abnormality or disease, not capable of giving reliable account, EE used to reveal this to jury.
R v Robinson	CofA: can't oath help and bolster own credibility in absence of an attack, so unless other side intending to adduce EE to state witness should not be believed due to impairment
Lowery v The Queen	Anomalous decision of privy council, suggested it may be possible to adduce EE as to credibility of W irrespective of impairment and attack on credibility.
R v Turner on Lowery	Said it should be restricted to it's own special facts, shouldn't be followed.
R v Ward	convicted murder, sought to adduce EE to show personality disorder causing them to lie about being member of IRA, confession would be unreliable. Held- admitted, outside knowledge of jury
R v Weightman	confessed to killing daughter, central issue whether confession true. Tried to adduce EE to show theatrical personality. Held- jury didn't need EE to show this, see for themselves.
R v O'brien Hall and Sherwood	Roch J- doesn't have to be mental illnes as such, could be abnormal disorder which may render confession unreliable, significant deviation from norm and have history predating the admission.
R v Gilfoyle (no 2)	Psychological autopsies. held- jury capable of assessing for themselves how happy someone would be.
Req 2- Expert appropriately qualified to give evidence on the matter	usually determined by training, qualification and expertise which has to be revealed to the jury.
R v Silverlock	Solicitor who studied handwriting in spare time. Whether study meant he had acquired a level of expertise, here had.
R v Robb	Auditory techniques. Essential Q whether study and experience will give witnesses opinion an authority which one not so qualified will lack
R v Clare & Peach	PO who studied CCTV, D argued he was in no better position that jury to give evidence. held- subjected images to minute study, possessed an authority which exceeded typical jury viewing.
Req 3: evidence in question meets the threshold of reliability	NOTE most controversial, no clear standard that EE has to meet to be properly admitted.
R v Bonython	Strict- Australian case, whether field of expertise Expert is drawing on has acquired some degree of recognition in terms of being a reliable field.
R v Gilfoyle (no2)	technique of psyc autopsies in it's infancies, judge wasn't convinced this field of expertise had become sufficiently recognised as a reliable technique
R v Harris	Gage LJ- Scientific thinking shouldn't be kept from court just because it was at stage of hypothesis if it would be of benefit.
R v Robb	CofA held evidence properly admitted as E properly qualified, used 2nd req to satisfy this. notorious case. EE had published no material to be scrutinised.
R v O'Doherty	CofA in NI- this particular form of voice evidence can no longer be admitted where based on auditory techniques alone
R v Dallagher	Ear print evidence. Kennedy LJ- evidence only has to meet ordinary test of admissibility: that it COULD be accepted as reliable by reasonable jury.
Prima Facie position-	inadmissible, main exception where fact finder unable to form opinions about the facts using ordinary knowledge and experience.
R v Turner	3 requirements 1- matter in Q outside experience of fact finder 2- witness appropriately qualified to give evidence on the matter 3- evidence in Q meets threshold of reliability
The Helpfullness Test	Common law principle in Turner- whether a jury can form opinion on own knowledge and experience.

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	Created by jessie-lou almost 11 years ago