8. Opinion evidence

2016 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Expert Opinion ◽  
Expert Witness ◽  
Common Law ◽  
Expert Evidence ◽  
High Quality ◽  
Criminal Trials ◽  
Questions And Answers ◽  
Flow Charts ◽  
Scientific Expertise ◽  
Civil Trials

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter explores an area of evidence law dominated by expert witness evidence and the extent to which flawed testimony leads to miscarriages of justice. Expert evidence is now commonplace in criminal and civil trials, and the courts and Parliament have developed procedures to ensure that it is of high quality. These are an eclectic mix of common law and statute and their development reflects the importance of scientific expertise. It is necessary to be familiar with the differences between expert and non-expert opinion evidence and on when and in what circumstances both types are admissible and questions that can be asked of the expert whilst giving evidence. The approach depends on whether the question relates to civil or criminal trials.

8. Opinion evidence

2018 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Expert Opinion ◽  
Expert Witness ◽  
Common Law ◽  
Expert Evidence ◽  
High Quality ◽  
Criminal Trials ◽  
Questions And Answers ◽  
Flow Charts ◽  
Scientific Expertise ◽  
Civil Trials

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter explores an area of evidence law dominated by expert witness evidence and the extent to which flawed testimony leads to miscarriages of justice. Expert evidence is now commonplace in criminal and civil trials, and the courts and Parliament have developed procedures to ensure that it is of high quality. These are an eclectic mix of common law and statute and their development reflects the importance of scientific expertise. It is necessary to be familiar with the differences between expert and non-expert opinion evidence and on when and in what circumstances both types are admissible and questions that can be asked of the expert whilst giving evidence. The approach depends on whether the question relates to civil or criminal trials

17. Opinion evidence

2017 ◽  
Author(s):  
Richard Glover
Keyword(s):  
Expert Opinion ◽  
Expert Witness ◽  
Common Law ◽  
General Rule ◽  
Expert Evidence ◽  
The Public ◽  
Commission Report ◽  
Materials Used ◽  
The Impact ◽  
Law Commission

This chapter discusses the following: the general rule of common law that the opinion of a witness is inadmissible, and the exceptions for evidence of general reputation, the opinion of an expert witness within his area of expertise, and the opinion of any witness as a way of conveying facts within the competence of members of the public generally which do not call for specialized knowledge; principles of admissibility; competence; independence and objectivity; the weight of expert opinion evidence; the function of expert evidence; materials used by experts in forming their opinion; expert reports; common subjects of expert evidence; and the admissibility of non-expert opinion evidence. The developments since the Law Commission report on Expert Evidence (No. 325) are addressed, as are the impact of the Criminal Procedure Rules 2015 and the Criminal Practice Direction.

9. Examination and cross-examination

2018 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Criminal Procedure ◽  
Sexual Offence ◽  
Criminal Trials ◽  
Questions And Answers ◽  
Flow Charts ◽  
Special Rule

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter deals with the type of questions that can or cannot be asked in examination-in-chief or cross-examination in criminal trials. This area overlaps considerably with criminal procedure, and Evidence courses vary in the topics they cover. The chapter covers refreshing of memory, rules on previous consistent statements and exceptions, and hostile witnesses in respect of examinations-in-chief. In respect of cross-examination, it covers rules on previous inconsistent statements, finality to answers to collateral questions and exceptions, the special rule for cross-examination of complainants in sexual offence cases and non-defendant’s bad character.

5. Hearsay

2016 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Criminal Justice ◽  
Criminal Trials ◽  
Questions And Answers ◽  
Flow Charts ◽  
The Law ◽  
Law Of Evidence ◽  
Hearsay Evidence ◽  
Law Commission

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter focuses on the rule against hearsay, which is, historically, one of the great exclusionary rules underlying the law of evidence. In 1997 the Law Commission recommended that hearsay evidence be put on a clearer statutory footing in criminal trials. This eventually led to wholesale reform in the Criminal Justice Act (CJA) 2003, which preserves the rule but increases the number of exceptions and safeguards, providing a comprehensive regime for hearsay. The chapter provides an overview of the changes to hearsay introduced by the CJA 2003.

Concentrate Questions and Answers Evidence

2018 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Public Policy ◽  
Expert Opinion ◽  
Law Students ◽  
Expert Advice ◽  
Supporting Evidence ◽  
Standard Of Proof ◽  
Character Evidence ◽  
Questions And Answers ◽  
Flow Charts

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions and coursework. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. Concentrate Q&A Evidence offers expert advice on what to expect from your Evidence exam, how best to prepare and guidance on what examiners are really looking for. Written by experienced examiners, it provides clear commentary with each question and answer and bullet points and diagram answer plans plus tips to make your answer really stand out from the crowd and further reading suggestions at the end of every chapter. The book should help the reader identify typical law exam questions, structure a first-class answer, avoid common mistakes, show the examiner what the reader knows and find relevant further reading. After an introduction, the book covers burden and standard of proof, presumptions, competence and compellability, Special Measures Directions, character evidence, hearsay, confessions, the defendant’s silence, improperly obtained evidence, supporting evidence, identification expert opinion, issues in the course of trial, privilege, public policy and mixed questions. The final chapter gives guidance on assessed coursework. The book is suitable for undergraduate law students taking optional modules in Evidence.

scholarly journals Experts and pretenders: Examining possible responses to misconduct by experts in criminal trials in England and Wales

2020 ◽  
Vol 24 (2) ◽  
pp. 180-207 ◽  
Author(s):  
Elaine Freer
Keyword(s):  
Expert Witness ◽  
Expert Evidence ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Criminal Trials ◽  
England And Wales ◽  
Academic Literature ◽  
Criminal Sanctions ◽  
Administration Of Justice ◽  
Disciplinary Procedures

Much academic literature explores the reliability of expert evidence in criminal proceedings in England and Wales. However, almost no attention has been paid to misconduct by experts giving evidence in criminal cases. Whilst rare, its serious impact on the administration of justice and public trust in it means that this area requires analysis. This article explores possible responses to expert witness misconduct occurring in the context of criminal proceedings in England and Wales, noting particularly the differences in responses available, depending firstly upon whether the expert is a registered professional, and secondly whether the expert has stepped outside of their expertise; did not have relevant expertise at all, or was dishonest. Professional disciplinary procedures focus on ‘fitness to practise’, and it is argued that this is sufficient where a registered professional has overstepped their expertise, but has not displayed mala fides. On the contrary, where someone gives evidence purporting to have expertise that they do not, or lies about their conduct as an expert in the case, criminal sanctions are available, appropriate, and should be used. These include contempt of court; perverting the course of justice; fraud by false representation, and perjury.

The Basis of the ‘Basis Rule’: The Role of the Basis Rule in the Admissibility of Expert Opinion

2015 ◽  
Vol 43 (2) ◽  
pp. 313-337
Author(s):  
Trang Phan ◽  
David Caruso
Keyword(s):  
Expert Opinion ◽  
Common Law ◽  
Court Decision ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Specific Context ◽  
High Court ◽  
General Terms ◽  
Admissible Evidence

The ‘basis rule’ is, in general terms, a rule which restricts expert witnesses to giving opinion evidence in respect of which there is or will be proof, by other admissible evidence, of the facts and assumptions upon which the opinion is based. There has been no clear consensus as to whether the basis rule exists either at common law or under the Uniform Evidence Legislation, or whether the rule goes to admissibility or weight. This article examines the jurisprudence, with a particular focus on the recent High Court decision of Dasreef Pty Ltd v Hawchar. The authors argue that the controversy surrounding the basis rule has been the result of a misunderstanding and misconstruction of the rule. They argue that the conflict may be resolved by understanding the basis rule as simply a rearticulation, in the specific context of expert evidence, of the requirement that evidence must be relevant to be admissible. The weight of that expert evidence remains to be determined in accordance with ordinary principles.

CRIMINOLOGICAL AND PENAL ASPECTS OF ISSUING A FALSE OPINION BY AN EXPERT WITNESS - DRAFT REPORT ON RESEARCH PROJECT WITH PROPOSALS FOR CHANGES IN THE LAW DETERMINING THE LEGAL STATUS OF EXPERT WITNESSES

2020 ◽  
Vol 136 (4) ◽  
pp. 360-375
Author(s):  
KRZYSZTOF JÓŹWICKI
Keyword(s):  
Expert Opinion ◽  
Justice System ◽  
Legal Status ◽  
Expert Witness ◽  
Criminal Responsibility ◽  
Negative Impact ◽  
Penal Code ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Draft Report

Evidence in the form of an expert opinion is usually of key importance for settling a pending case in any type of proceedings. In some cases, the role of the expert witness is closer to that of a judge rather than that of a witness, since a judge who does not have special knowledge often has to use evidence given by an expert to render a judgement. For this reason, issuing a false expert opinion results in a very high risk of delivering a wrong and unfair decision in a given case, which in turn has a negative impact on the social perception of the functioning of the justice system. In the Polish Criminal Code, criminal responsibility for issuing a false opinion is stipulated in Article 233 (4) and (4a) of the Penal Code. At the same time, despite a very large number of reports of suspicion that a crime has been committed by an expert witness, only a negligible number of investigations result in a bill of indictment and a conviction, which causes virtual impunity of perpetrators and has a negative impact on the functioning of criminal justice. Due to the diagnosed research gap in this area, the need to investigate and describe the phenomenon of issuing false opinions by expert witnesses, both in normative and criminological terms, on the basis of empirical research, has been clearly seen. The main objective of the research has been to characterise the phenomenon in question on many levels and to determine its real extent, its etiology and symptomatology. An additional aim of the research has been the verifi cation of research hypotheses and recognition of the normative sphere of the expert witness’s status, expert evidence, and principles of responsibility for issuing false opinions. The research fi ndings have resulted in proposals of solutions aimed both at limiting the phenomenon of issuing false opinions and more effective prosecution of perpetrators of crimes under Article 233 (4) of the Penal Code, which in turn may translate into more effi cient functioning of the entire justice system, as expert witnesses and their work are an extremely important aspect of thereof. The conducted research has fully confi rmed the research hypotheses and precisely indicated defective areas of expert evidence, and consequently the need to introduce immediate legislative changes. Some of the research conclusions and de lege ferenda postulates were implemented into the amended provisions of the Penal Code in 2016, which fully confi rms their legitimacy. Unfortunately, there is still no legal act of statutory rank which would comprehensively regulate the status of expert witnesses and expert evidence.

4. Character

2018 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Criminal Justice ◽  
Legal System ◽  
Common Law ◽  
Fair Trial ◽  
Criminal Proceedings ◽  
Exclusionary Rule ◽  
Questions And Answers ◽  
The Common ◽  
Flow Charts ◽  
Complex Question

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter concerns a complex question in criminal evidence: situations where defendants may adduce evidence of good character to suggest lack of guilt and support credibility, and those where prosecution counsel or counsel for the co-defendant may cross-examine them on previous ‘reprehensible’ behaviour. The exclusionary rule was fundamental to the English legal system and founded on the principle that the defendant should have a fair trial. The Criminal Justice Act (CJA) 2003 made comprehensive changes to the rules of admissibility of evidence of bad character of the defendant and witnesses providing that ‘the common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished’. There is now a presumption of admissibility of that evidence.

2. Burden and standard of proof: Presumptions

2018 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Burden Of Proof ◽  
Presumption Of Innocence ◽  
Criminal Trials ◽  
Standard Of Proof ◽  
Statutory Provision ◽  
Questions And Answers ◽  
Flow Charts ◽  
The Law ◽  
The Difference ◽  
Law Of Evidence

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter discusses the allocation of the burden of proof in civil and criminal trials, depending on who should bear the risk. In criminal trials the ‘presumption of innocence’ means that the burden is on the prosecution, unless reversed by express or implied statutory provision. The law of evidence safeguards what in some jurisdictions is a civil right backed by the constitution. It is important to understand the difference between the legal and evidential burden and the occasions where they are separately allocated. Tricky areas are where there is a divorce of the legal and evidential burden, primarily in situations where the prosecution cannot expect to put up evidence to anticipate every specific defence the accused may present.

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