Admissibility of Expert Evidence in Criminal

Proceeding
The Admissibility of Expert Evidence in Criminal Proceedings

Chapters

Introduction Page 3

Philosophy of Expert EvidencePage 5

Section 1 - Opinion Evidence and Page 7

Its relationship to Expert Evidence

1. Contradiction of Expert Evidence LawPage 11

ii. Ultimate Issue & Information in the Public DomainPage 13

iii. Peritus and Role of the Expert WitnessPage 21

iv. Daubert & The Extent to which we utilise Expert EvidencePage 29

v. Conclusions..Page 43

Section 2 - Hearsay & Its Page 48

Relationship to Expert Evidence.

Overall ConclusionsPage 54

Introduction

Rabelais Judge Bridlegoose lays down a challenge for the legal profession. Bridlegoose threw dice to decide
cases his deductive logic being that by using dice both sides had an equal chance of winning and therefore over
the long run he would get the right result in about half the cases . A number that given the arbitrary
[1]
confusion, the obfuscation and chicaneries of lawyers and the possibilities of his own fallibility there was no
such guarantee he would achieve this level . All serious theoretical discourse on the Law of Evidence
[2]

mandates rectitude of decision so the challenge is to get a better rectitude of decision in both design and
[3]

practice than would be achieved by throwing dice. The scandals in recent years surrounding the cases of
people such as Angela Canning and Sally Clarke and the overturning of convictions based on expert medical
[4] [5]

evidence have exemplified a classic example of a failure to get rectitude of decision; if their judgement had
been based on the roll of a dice their results may have been fairer to them. The issue of expert evidence and its
relationship to the exclusionary evidential rules on opinion and hearsay has been the subject of a large
academic scrutiny and it is to this subject matter that this work will be focused upon.

The dangers of expert evidence are well rehearsed in the courts and it is a very contentious area, the well
known dicta of Lawton LJ in the case of R v. Turner exemplifies an ancillary point to the one made above,
[6]

veracity is to be determined by the decision maker and we must become wary of abrogating such a right and
stated that English law had to be wary of becoming too deferential or reliant on expert evidence because it is
trial by judge and jury not by expert. The issues which this work seeks to deal with can be of the utmost
importance, in this work I hope to critically assess the current state of the law as regards expert evidence post-
Criminal Justice Act 2003 . The work attempts to fuse the two themes that I have implied here namely; the
[7]

current attitude to expert evidence vis a vis the inherent conceptual dangers of the subject matter and secondly,
whether as a whole it deals with the aims of the Law of Evidence more generally. Its position as an exception
to such a large rule as Hearsay makes this Janus-like approach necessary and lends considerably more
[8]

conceptual clarity in a subject area which is contentious for various reasons with rich intellectual backgrounds.

We will start by looking at a history of the evolution of the concept of expert evidence as an exception to the
exclusionary rule against opinion evidence which will combine both elements of practical law and theoretical
background justifications for the existence of such laws. This section will be the bulk of the essay as we seek
to build an in depth account of Expert Evidence and will look at a number of issues such as the courts attitude
to new technologies and the detailed case law about the areas upon which the courts will allow expert
evidence, always evaluating this against the background purposes of the rule. The evaluation in this section
attempts to assess whether the rules on expert evidence exhibit a holistic coherence. This neatly flows into the
second part of the work which will discuss expert evidence as an exception to the hearsay rule. In conclusion, I
will draw both strands of the work together and propose a number of tentative amendments, however whilst
this is a critical work, as we shall see the complicated nature of all the issues requires us to go into great detail
about a large number of issues. The nature of this work is about criticising the lack of holistic treatment of the
subject matter rather than substantive reforms.

Philosophy of Expert Evidence

The jurisprudential treatment of the law of evidence has a long history and it would be impossible in this
section to do justice to the variety and complexity of the jurisprudential arguments that surround this subject
matter. However as we shall see Expert Evidence is a particularly interesting subject because of its position in
the Law of Evidence.

The general law of evidence in the Anglo-American system is built on a system of free proof with a number of
exclusionary rules. This picture is very neat and easy for us to deal with on a conceptual basis. There is a clear
need for any decision-maker to have all the available facts before him so that he can make the correct, or just,
decision. However, some evidence is inherently misleading, unreliable and prejudicial. The individual rights of
the parties and the demands of justice in the Anglo-American system mean that this evidence is excluded so
that in effect the decision-maker makes his deliberations on all the best evidence available at the time. The
Adversarial trial system is the best way of eliciting this information from the available sources such as
witnesses and real evidence. This is the prosaic understanding that underlies to a large degree the modern day
criminal justice system.

However, the situation becomes more difficult when evidence doesnt neatly fall into the reliable / unreliable
category. Furthermore it can cause confusion where generally unreliable evidence is admitted in certain cases
because of unique concerns. Expert Evidence is precisely one of these types. We will discuss these issues in
greater detail below however we will give a brief overview at this point. The reasons for including expert
evidence are self-evident to a point, it is a rare judge who believes he understands absolutely every piece of
information that he may be presented with. The average judge may have very little grasp of the scientific
probability ratios that underlie DNA evidence or the minutiae of the refractive index of glass. However, these
issues can be central in a trial and it is thus essential if justice is to be done that a judge understands the
evidence. The problem is that much of scientific advice will be opinion based, furthermore science is generally
accumulative and thus inevitably there will be a degree of reliance on the work of academic peers. These
attributes cause all expert evidence to fall foul of two large exclusionary rules of evidence: Hearsay and
Opinion evidence. The situation thus becomes highly complex because there is an inherent tension between the
principles that state such evidence is unreliable and the perhaps more fundamental principles that require any
decision that may deprive an individual of liberty or property to be based on a rational and cogent basis. As we
continue we will see that these principles are the guiding principles for the judiciary and that the substantive
law that govern the admissibility of expert evidence embody such principles. However, their position as an
exception to the rule also place an inherently contra proferentem approach whereby the courts are likely to
construe the meaning of such exceptions narrowly. The inconsistency between the rules highlights a further
dimension; that overall the philosophy that is guiding the growth and formation of law in this respect is far
from clear.
Opinion Evidence and Its relationship to Expert Evidence

Mr Smeaton understands the construction of harbours, the causes of their destruction and how remedied I
have myself received the opinion of Mr Smeaton respecting mills, as a matter of science. The cause of the
decay of the harbour is also a matter of science Of this, such men as Mr Smeaton alone can judge.
Therefore, we are of the opinion that his judgment, formed on facts, was proper evidence

Lord Mansfield, Folkes v. Chard (1782) 3 Doug KB 157

The issue of expert evidence is fundamentally based on practicality and common sense, unfortunately it suffers
from the common deficiency of such concepts; it is incredibly difficult to translate such a nebulous concept
into prescriptive rules of law. The problems associated with the concept will become apparent as we continue
this discussion but just as this point I want to make clear the critical model that Im using to assess the law in
this area as it makes a large impact to the direction of the whole work. Lord Mansfield above pointed out that
the evidence was taken as science and therefore as objective, these criteria for why we accept evidence are not
exhaustive and as we shall it is a highly varied concept.

Frederick Schauer has written on a particularly interesting aspect of legal rules that examines the correlation
between the background moral, social &c and their translation into law. Schauer hypothesises that in a
society where all the people agreed on the content of moral principles there would still be a problem over the
conversion of these moral principles into coercive and authoritative social rules i.e. Law . This is because for
[9]

such rules to be authoritative they must be formal and strictly applicable and actually supplant moral
principles . However because these rules are
[10]

promulgated by human beings of finite reasoning & informational capacities & that are meant to improve
the moral condition of human beings of finite reasoning and Informational capacities will always fail to
capture precisely the requirements of morality

It is this so called asymmetry of authority that this work is going to be sensitive to for the first section, the
distinctive needs and justifications for expert evidence as compared to the letter of the law. It is, as stated
above, highly improbable that given our finite reasoning that the law is wholly satisfactory therefore the aim is
merely to assess whether the rules are under or over-inclusive as regards the justifications that we will discuss
in this work. I mention this here so that the reader is fully aware of my aims at the outset.

The common law ban on opinion evidence except in the case of experts is generally traced to Lord Mansfields
dicta in the Folkes case, above, however the recognition by society that in some cases the use of experts can be
an aid to the arbitration of justice dates to significantly earlier. Hodgkinson cites the 14 century case about
[11] th

mayhem which is mentioned in Buckley v. Rice Thomas as an early authority whereby surgeons where
[12]

summoned to assist the court as to whether particular wounds constituted mayhem or not because the judges
lacked the requisite skill to reach a conclusion. In Buckley Saunders J made an obiter dicta remark which
summed up one of the main justifications for admitting expert evidence at the time:

If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that
science or faculty which it concerns, which is an honourable and commendable thing in our law [13]

However, at the same time as this the law was woefully inept to cope with some of the more subtle distinctions
that exist within our modern day legal framework. When we realise that certain evidential rules developed
much later, for example at the time of Buckley an accused was not even allowed to have witnesses or even a
proper defence to a murder trial. These rules developed over time and the eminent evidence scholar John
Wigmore has argued that importantly for the issue of expert evidence the willingness of the courts to rely on
expert evidence was very much unguided by any formal principles until the distinction between opinion and
factual evidence became more formed . The understanding of the interrelationship between expert evidence
[14]

and the exclusionary rules on hearsay and opinion evidence becomes at this point, the early nineteenth century
according to Wigmore, vital.

On a reading of the older sources prior to the advent of this distinction the courts have no clear principles
guiding them. This is not per se a bad thing because it is arguable that later distinctions, particularly driven by
the scientific approach to law taken by enlightenment scholars such as Bentham and Wigmore have, in the
light of modern day post-modernist and realist critiques, lost much of their poignancy. However, the
distinction between opinion and fact is dominant in the jurisprudence of the courts and is a very traditional part
of the law of evidence. The justifications given for this ban on opinion evidence are traditionally four fold ; [15]

primarily the opinion of non-expert usurps the function of the jury and could lead to an undue influence being
exerted by the witness on the jury members, this was pointed out by Vaughan CJ in Bushells Case : [16]

The Verdict of a Jury and Evidence of a witness are very different thingsa witness swears but to what he
hath heard or seen, generally or more largely, to what hath fallen under his senses. But a Juryman swears to
what he can infer and conclude [17]

Another reason is that opinion evidence is largely irrelevant, which makes common sense when we think about
the situations in which the rule operates. It is irrelevant if a non-expert opinion is given on an area requiring
expertise as that person simply does not have the substantive knowledge to back-up an assertion of opinion.
Furthermore if an opinion is given where no expertise is needed, quite apart from the prejudicial effect it may
have, it is irrelevant as the decision maker is perfectly capable of forming their own opinion on the facts.
Thirdly, a witness cannot be prosecuted for perjury as regards their opinion, or liable in tort for negligence , [18]

the law therefore doesnt provide for any safeguards on the veracity of witness opinions. Finally, there is an
established fear that the proffering of an opinion might circumvent other exclusionary rules such as relevance,
hearsay and the findings of other tribunals . The last justification appears to lack a degree of poignancy
[19]

because the other exclusionary rules are widely known and therefore an opinion can be treated just like any
other item of evidence and be excluded if it falls under those exclusions.

The impact of this distinction was revolutionary when it started to infuse legal practice in the
19 century because before the fact / opinion divide was understood and substantive laws developed to
th [20]

represent such concerns, the use of expert witnesses was an aid to the court that was where the reflection
ended. The opinion / fact divide means that expert witnesses become an exception in their own right and thus
identifiable as a particular class of evidence. This subtle change in perception means that the internal
justifications of exception evidence come into play. They are an exception to a general rule and therefore the
admittance of expert opinion has to be more strictly understood and that is why we see a lot of case law, in the
late nineteenth century and twentieth century, that begins to flesh out the jurisprudential and substantive
dimensions of the exception as awareness of the competing concerns in this area begin to infuse the judiciary.

In discussing the justifications for the expert witness exception Hall & Smith describe the overall approach that
the court takes to the exception as being a rule that opinion of scientific men upon proven facts may be given
by men of science within their own science . However the tension between expert evidence and opinion
[21]

evidence is exhibited in how that overarching principle is translated into law. The purpose of the following
sections is to show how the basic tensions that exist in the above internal justification give rise to different
problems. An understanding of the basic justification given for using experts is immeasurably useful and ought
to be borne in mind; we may well be critical in the way that the need for experts is translated into substantive
law but at no point are we critical of the de facto use of experts.

1. Contradiction of Expert Evidence Law

Hodgkinson refers to there being a contradiction at the centre of expert evidence which can be clearly
understood when we think out the problem logically . Opinion evidence is predominantly excluded for its
[22]

prejudicial effect and usurpation of the role of judge and jury, as we shall see below. The various exceptions
for experts are complicated but they represent a mix between the common law reservations over opinion
evidence and the need for aid in fields of expertise that it is impossible for judges and juries to make an
informed decision upon. However when contradictory expert evidence is placed before the court, both of
which have equal validity because of their backgrounds, the court is back in square one, as the great American
judge and jurist Judge Learned Hand stated:

How can the jury judge between two statements each founded upon an experience confessedly foreign in kind
to their own? It is just because they are incompetent for such a task that an expert is necessary at all
[23]

The main culprit in these circumstances is the adversarial system as Davies points out:

If we were toto design a system for the resolution of questions involving expertise, we would probably start
with the idea that an expert, or a panel of experts, should decide such questions. If someone were to suggest to
usa person who had no expertise would decide such questions after hearing competing arguments from
opposing experts, we would dismiss it as bizarre [24]

There are a number of reasons why the contradiction in expert evidence is symptomatic of the flaws of the
adversarial system. Primarily the dichotic straightjacket that such a system forces on the presentation of
evidence, especially in criminal procedure, is not suited to the presentation of scientific arguments, many do
not admit of conclusive answers and cannot be wholly presented as supporting one partys narrative.
Nevertheless a retained expert may suffer from what is called the adversarial bias whereby theyre
[25]

encouraged to expand on the evidence that supports one sides narrative. This practice in itself exacerbates the
contradiction of expert evidence, Davies quotes an Australian judge who referred to two cases where scientific
knowledge was required and two diametrically opposed scientific opinions were given , the quandary this
[26]

leaves for the judge is two-fold. The judge or jury must assess to what extent the evidence being presented is
the result of adversarial bias and what is the whole picture, the more complicated the problem the more
difficult this inevitably becomes. Secondly, the judge has to come to a decision which is right and therefore
requires more than anything an independent expert to help them again the need will be greater in situations of
greater complexity. When we consider the general demographic of the judiciary in most cases being those well
into middle-age and consider that, especially in cases of Intellectual Property, they may fall to consider some
advanced technological concepts which would be wholly alien to their general education then we can see how
difficult the situation may become.

There are a large number of potential solutions to these problems none of them are ideal however for our
purpose the mere realisation of the dimensions of this problem are what is important. The justifications and
competing arguments that we will discuss regarding prejudicial effect, aid, justice &cwhich inform the main
common law principles of expert evidence all have problems or distortions when they are translated into
practice. This problem is one of many with the expert witness system because it means that the very reason for
the exception to the exclusionary rule on opinion and hearsay is undermined. If the adversarial system causes
expertise to be cancelled out then given the time, expense and potential injustices that can arise perhaps they
are not the aid to the courts that they once were. If their opinion is known to be diametrically opposed by a
similar expert then their opinion is as good as the judges or jury members and as they can be no aid,
consequently they are frivolous and potentially prejudicial.

2. Ultimate Issue & Information in the Public Domain

The Expert Opinion must be based upon the facts, if there is an error as to the facts then the Expert may not,
however skilled, give his opinion on the issue . The opinion is considered to be valueless in the same ways
[27] [28]

as normal opinion evidence. The opinion proffered also has to be necessary in order to aid the understanding of
the decision-maker in a particular case. A good comparison can be made in this respect between DPP v.
Jordan and DPP v. AB & C Chewing Gum Limited because these cases both revolved around the impact of
[29] [30]

obscene publications on people. In the Jordan case the court upheld the ideology that jurors were able to make
up their own minds and did not need expert psychological evidence as to the effect of obscene materials:

They cannot be told by the psychologist or anyone else what the effects of the material might besince the
decision has been given to the jury as representing the ordinary man, it follows that, as matters affecting the
ordinary man, the jury, as such, must make it [31]

This approach has debarred certain types of evidence, one such type of evidence, which was paradigmatic until
recently , is that of expert evidence as to witness credibility. This approach is not unanimously supported for
[32]

example in Scotland there are a number of cases and articles on the issue. Raitt has suggested that in certain
[33]

cases there is considerable doubt over whether or not a typical juror or judge can understand the issues that
may effect witness credibility. The examples that she gives is victims of domestic abuse and victims of child
abuse, the nature of these crimes and the potential psychological effects on a witness are potentially completely
alien to the experience of most jurors and judges . In R v. Turner the court laid down the reasons why such
[34]

evidence ought not to be admitted:

authority for the proposition that in all cases psychologists and psychiatrists can be called to prove the
probability of the accused's veracity. If any such rule was applied in our courts, trial by psychiatrists would be
likely to take the place of trial by jury and magistrates [35]

The courts have now reconsidered that the science is now stable enough and as we shall see the intermingling
between this issue and the issue of reliability is quite large. The development of this rule in comparison to
some of the continental jurisdictions gives us an interesting comparison of the underlying motivations in the
UK system. The judge in both South Africa and other civil law jurisdictions posit the judge as the ultimate trier
of fact so the test laid out in Turner as to the admissibility turning on the helpfulness is treated more literally.
The judge asks whether this or that piece of expert evidence would truly be of use to him in coming to a
decision in the particular case. However, as we have seen above the concern of English law is not so much on a
strictly helpful basis because it is interpreted to have more to do with the Ultimate Issue rule that we will
discuss below. This means that there is an emphasis on the normal / abnormal sphere divide and the judges sit
[36]

as arbiters of that divide. The arbitrary nature of this divide has been questioned using similar studies to that of
Raitt, above, and the point has been made that much common behaviour is 'demonstratively counter intuitive
in the sense that "ordinary men and women" generally misunderstand [it] . [37]

In A,B &C the court considered another prosecution under the Obscene Publications Act 1959 similar
to Jordan however as the target audience was children rather than adults, psychological evidence was allowed
because any jury and any justices need all the help they can get when it comes to children. Lord
[38]

Wilberforce commenting on the nature of the distinction in Jordan stated:

To this general rule there may be an exception in a case where the likely readers are a special class, such that a
jury cannot be expected to understand the likely impact of the material upon its members without assistance. In
such a case evidence from persons qualified by study or experience of that class may be admissible [39]

This kind of distinction is seen across the board as regards expert evidence and forms a wider rule that the
opinion of an expert is not necessary or helpful where there is not some identifiable body of science which is
not considered to be understandable by the average person . In R v. Masih the court specifically stated
[40] [41]

in order to enlighten the jury upon a matter which is abnormal and therefore, ex hypothesi, presumably
outside their experience then expert evidence will be allowed. The decision is one of pure discretion and a
systematic study of what is allowable would be almost obsolete by the time it was written because of the
variation in what is considered in the public domain. Zuckerman specifically states on this issue:

A judge deciding whether expert opinion should be accepted as an arbiter of a certain matter has to consider
the state of public opinion on the point. If the community has come to defer to professional standards on the
matters in question, the courts will normally follow suit [42]

This issue will become more pertinent later on when we discuss the courts attitude to new technologies and
medical evidence. The law has exhibited a degree of incoherence and particularism in its application of the
normal / abnormal divide which is, as we stated, inherently likely to occur because of its discretionary basis. In
R v. Lowery which allowed psychological evidence in the case of two adults, on the face of it this seems to
[43]

be contrary to the decision in Jordan above and the general rule against having expert evidence on an area
considered in the public domain. In that case Lord Morris justified his admittance of such evidence by stating
When an accused person put his character in issue, he is in effect asking a jury to take the view that he is not
one who would be disposed to have committed or would be likely to have committed the crime in question
if an accused person is not of good character, the law has been firm . This tenet of the law has become one
[44]

that centrally justifies the existence of the rule, the experts role has always been one of aid since its very
inception however that aid is circumscribed to fall only in those categories which the court decides it requires
such aid. However, the tension between the aid an expert opinion can give the court and the perceived potential
prejudices of such aid mean that the law goes onto circumscribe the role of an expert.

The distinction that Lord Wilberforce was making in Jordan is significantly related to the more fundamental
rule that Expert Witnesses cannot give evidence on the ultimate issue. This concept is very vague but is a
product of both the tension I mentioned above between the expert evidence exception and the general rules of
evidence as well as the potentially determinative weight that will be given by a lay person to such evidence.
The basic premise of the ultimate issue rule is that the expert shouldnt give an opinion on any issues which it
is for the judge or jury to decide, the classical position was outlined by Cresswell J in National Justice
Compania Naviera SA v. Prudential Assurance Co Ltd where he remarked that An expert witness should
[45]

provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within
his expertise . The idea of ultimate issue is perhaps best understood by use of an example. It would be
[46]

inappropriate to ask a medical expert in a medical malpractice case whether the accuseds behaviour fell short
of that required by a professional doctor. However, Lord Taylor, in a separate case in the same year as
National Justice, made an obiter dicta remark about the practical operation of the rule:

The rationale behind the supposed prohibition is that the expert should not usurp the functions of the jury. But
since counsel can bring the witness so close to opining on the ultimate issue that the inference as to his view is
obvious, the rule can only bea matter of form rather than substance [47]

Thus, in our malpractice situation we can see how a skilled advocate might ask questions which have obvious
inferences on the standard of the accuseds behaviour by directing the expert to explain what common medical
practice in the particular situation is. As an ancillary issue to those started here it is worth pointing out that the
courts have made it quite clear that they need not accept the experts advice, as was stated in Re B (a minor)
(care: expert witness) the parties have invoked the decision of a judicial tribunal and not an oracular
pronouncement by an expert . This situation was discussed in Liddell v. Middleton where the judges were
[48] [49]

highly critical of the parties in bringing expert witnesses in a road traffic accident where there were eyewitness
accounts and they specifically stated:
There has been a regrettable tendency in recent years in personal injury cases, both road traffic and
industrial accidents, for parties to enlist the services of experts whether they are necessary or not. When they
are not necessary, they simply add to the already high cost of litigation and the length of the trial
[50]

However the judge must not simply substitute his decision for the experts where there is nothing to contradict
unanimous expert evidence in favour of the accused . In Bolitho v. City and Hackney Health Authority Lord
[51] [52]

Browne-Wilkinson discussed the role of the judiciary and whether it was one of deference or education,
primarily he laid town a test that where in certain cases it cannot be demonstrated to the judges satisfaction
that the body of opinion relied on is reasonable or responsible furthermore he went on to state his opinion on
[53]

the level of deference a judge ought to pay to an expert:

In my view, it will very seldom be right for judge to reach the conclusion that views genuinely held by a
competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical
judgement which a judge would not normallymake [54]

The rule on ultimate issue may well be under threat if we are to believe the dicta of Lord Taylor above
however there are definite limits. The ultimate issue rule does still exert a certain pressure in determining the
line between what is acceptable and what is unacceptable in actually giving evidence for example the courts
[55]

have been quite clear that an expert should not under any circumstances opine what he would have done if he
was in similar circumstances to that of the accused . One of the more recent decisions on this issue was in
[56]

Pride Valley Foods Ltd v. Hall & Partners (Project Managers) where Toumlin J was very emphatic in his
[57]

condemnation of the reports prepared in that case, he specifically relied on Pozzolanic Lytag Ltd v Bryan
Hobson Associates and the judgement of Dyson J in that case, Toumlin J in particular stated:
[58]

Many of these are questions for the court and not questions for the experts He purports to make many
findings of fact on questions which are matters for the judgeHis report offends against the established basis
on which experts should give evidence [59]

It must be remembered that these cases are civil cases and as such the rules are slightly distinct however as
regards the rule on ultimate issue both the civil and criminal seem to have identical tests.

The academic commentary on this rule has also been unfavourable and it is claimed that the rule is open to a
very large degree of criticism. The main justification of the rule is premised on a belief that the jury might be
overly influenced by an expert which is a false assumption in the case where it is a professional judge sitting
alone. It has been said to in fact be wholly antithetical to the whole underlying justification for having experts
namely that the drawing of inferences from the facts in question calls for an expertise which the tribunal of
fact does not possess . A final reason why this rule is considered to be inconsistent is that there is a high
[60]

frequency of disagreements between experts in the case law in any case so it will be very rarely that there is
unilateral incontrovertible expert evidence in favour of one party. Therefore the prejudicial effect of this rule
has to be questioned, reinforced by its absence from the Civil Law of procedure and its almost complete
invisibility from day to day Criminal law procedure . The problem with such an approach of quasi-existence is
[61]

clearly undesirable and offends against principles such as the rule of law.

The law has always recognised that experts have a role to play however what was described by Wigmore as the
fact / opinion divide was part of a whole movement in philosophical, jurisprudential and evidence scholarship
which insisted on the use of exclusionary rules of evidence. Holdsworth in discussing this development
identified that these exclusionary rules of evidence were the work of the sixteenth and seventeenth
century and in particular the rise of the belief that law of evidenceis distinct from the logical processes of
[62]

reasoning; but it is based upon and assumes the existence of these processes . Holdsworth is making an
[63]

interesting point here, which is related to our exercise, in that many of modern day evidential rules such as
burden of proof and exclusion of certain facts as inadmissible flow directly from instinctive reasoning
processes and the application of logic in a system of relative free proof:

Thus the rules which flow obviously from the principles of reasoning have been overlaid by a mass of
technical rules, which represent the ideas and needs of many different periods in the law of procedure [64]

Twining again referring to this sort of overlapping and intermingling progression of the rules of evidence
identifies that there are many competing concerns . He identifies the rule of Hearsay as starting around the
[65]

sixteenth century, so we may reasonably infer awareness of the issues of opinion evidence and experts as an
exception to that point. The issues we raised in this section regarding the role of expert as an aid and also the
restrictions on testimony as to the ultimate issue show these competing concerns. Clearly the dominant concern
in excluding opinion evidence is that the evidence could potentially be considered by a decision-maker despite
its potentially unreliable nature however, in some cases an informed opinion will not be unreliable and thus in
[66]

those situations an expert will be allowed to aid the court.

The concerns regarding experts only being called in cases where there is a genuine area of expertise not in the
public domain were exemplified in R v. Turner, above, where it was stated that the existence of scientific
qualifications and use of scientific jargon on matters of normal human behaviour may not be any more helpful
than that of jurors themselves; but there is a danger that they may think it does . The danger of overemphasis
[67]

on pre-ordained unreliable evidence is one of the central motivations for the exclusionary rules of evidence and
we can see it playing a large role here. The rule on no evidence on the ultimate issue furthermore exhibits such
a sensitivity to background principles and the courts approach is clearly motivated by the desire to avoid trial
by expert. However, the obvious artificiality of this test, as recognised in Stockwell, has forced reconsideration
in the logic which motivates this rule. Robertson & Vignaux point out that an expert in expressing an opinion
[68]

as to the ultimate issue may well make certain assumptions about prior odds. The main example would be
where a forensic expert giving evidence as to the match between the accuseds blood and that found at the
crime scene expresses an opinion as to the accuseds guilt. There are certain assumptions that an expert may be
making which may be invalid and it is wise to bear in mind that an expert may well only be operating from a
more limited set of facts than the court has available to itself . [69]

The understanding of these various competing concerns is interesting because to a degree the problems in the
rules that we identified cut both ways. The background principles are translated into rules that in some sense
are both under and over inclusive. The need to rely on experts but the desire to limit their privileged position in
giving an opinion to the court appear to war against each other.

3. Peritus and Role of the Expert Witness

Another basic common law rule which tells us a lot about the way that the law treats expert opinion is the fact
that an expert witness need not have any formal qualifications as such but the judge will determine whether he
exhibits a sufficient degree of expertise. The leading case in this area is R v. Silverlock where a solicitor who
[70]

had gained expertise in handwriting comparison through an amateur interest in the area which had been put
into practice. Lord Russell CJ stated that there was no test of expertise rather the correct approach was for the
judge to ask is he peritus? Is he skilled? Has he an adequate knowledge? Looking at the matter practically, if a
witness is not skilled the Judge will tell the jury to disregard his evidence . In more modern times the law has
[71]

upheld informal experts in various situations such as a police officers experience in traffic accidents
qualified him as an expert . In Westminster City Council v. McDonald the court held that expert opinion as
[72] [73]

to noise was admissible even in the absence of sophisticated technology or techniques. The best summing up
of the law was given by Tyrwitt Drake CCJ in R v. Bunnis : [74]

The test of expertness, so far as the law of evidence is concerned, is skill, and skill alone, in the field of which
is sought to have the witnesss opinionIt is not necessary, for a person to give opinion evidence of a question
of human physiology, that he be a doctor of medicine [75]

The interesting thing about the approach of the courts here is that it uncovers a more liberal approach in the
courts thinking, a willingness to treat expertise at face value and not debar certain origins of those expertise.
The common law rules we examined in the previous section were borne of a tension between the competing
concerns of the court. Commentators have questioned this approach, especially in light of the obvious
dangers of relying on expert testimony of a questionable reliability . The approach is also not precisely
[76]
harmonious as ss 1(1) and 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 require
specifically qualified experts before an acquittal based on the defence of Insanity only on the basis of two or
more registered doctors, at least one of whom is approved by the Secretary of State as having appropriate
expertise. However it is clear that this is an accepted approach given that an identical test is administered in
other jurisdictions . This seems to be adequate evidence that there is scope for variation on this point.
[77]

The role of the expert witness is also an interesting position, unlike other witnesses who although sworn to tell
the truth do not owe a duty to the court above that of the party calling them. An expert witness does and Lord
Wilberforce commented on this aspect in Whitehouse v. Jordan stating that whilst some degree of
[78]

consultation between experts and legal advisers is entirely proper it is necessary that expert evidenceshould
bethe independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.
The somewhat nebulous definition was given considerable judicial attention in the case of National Justice
Compania Naviera SA v. Prudential Assurance Company Ltd where the court set out a number of key aspects
[79]

of the role of the expert witness:

Objective unbiased opinion to matters within his expertise

State the facts upon which assumptions are based
Make it clear when an issue falls outwith their expertise
If there is insufficient data then he should inform the court that opinion is provisional
Any change of views after an exchange of reports should be communicated to the other side.
Any real evidence upon which opinion is based should also be provided. [80]

This is summarised by Swann as boiling down to a general duty for the expert to advise the judge, to
undertake assessment, to give an opinion and consult with other experts this was all to be done in a spirit of
[81]

integrity and objectivity . [82]

An interesting set of facts occurred in Liverpool Roman Catholic Archdiocesan Trustees Inc v. Goldberg (No
3) where it was admitted by the expert that he had a personal relationship with the defendant. The judge felt
[83]

that it was just as important that justice is seen to be done and therefore the lack of independence on the part of
the expert making him more favourable to one party made his evidence inadmissible. This case highlights the
tension between the judiciarys commitment to having the aid of an expert to understand the full facts of a case
and in turn upholding the ideology that certain evidence ought to be excluded because of its potentially
prejudicial effect. Although not directly concerned with the role of the expert it is a further limit upon their
ability to appear in a court of law. It has been stressed by many commentators that fundamentally the right of
an expert to appear in the court and not to be subject to the strictures of normal evidence law is to be treated as
a privilege . This privilege has been extended in a haphazard and often incoherent manner and it is not
[84]
altogether unsurprising that academic attempts at rationalisation will generally fail to capture the entire nature
of the courts approach.

The role of the Expert witness in the legal arena has been an area of great controversy for the last decade ever
since the Access to Justice reports in the mid-1990, also known as the Woolf Reports . The focus of Lord
[85]

Woolf was the prohibitive cost of litigation which was in part contributed to by the multi-million pound fee
income industry that pervaded professions as wide and varied as Accountancy and Architecture. In
[86]

addressing one of the major problems that this presented for both the Criminal and Civil Justice system Lord
Woolf considered the main problem was that the adversarial system had a distortive effect on the role of the
Expert:

There is wide agreement that the expert's role should be that of an independent adviser to the court, and that
lack of objectivity can be a serious problemThe present system has the effect of exaggerating the adversarial
role of experts, and this helps neither the court nor the parties[87]

The tragic miscarriages of justice in the cases of Angela Cannings, Sally Clark and Trupti Patel show that even
the limited reforms that flowed from the Woolf Reports have not improved the situation, at least not in the
Criminal Justice system . There are numerous medical and legal articles detailing the fact that experts feel an
[88]

inherent pressure from a solicitor in presenting evidence and there is a great deal of cynicism, as shown by the
observation that it is quite surprising to see with what facility and to what extent, their views can be made to
correspond with the wishes or the interests of the parties who call them . A leading report was published in
[89]

2004, in the wake of the criticism of Sir Roy Meadows evidence in the Clark and Cannings trials, by the
Royal College of Pathologists and the Royal College of Paediatrics and Child Health Care which again
highlighted that medical experts in trials were falling prey to the pressure of giving evidence in support of their
side and furthermore they were relying a lot more on medical belief rather than scientific evidence . The
[90]

adversarial bias was hoped to be solved by the Woolf report with reference to a prescriptive duty on the expert
witness that provide[s] that when an expert is preparing evidence for potential use in court proceedings, or is
giving evidence in court, his responsibility is to help the court impartially on the matters within his expertise.
This responsibility will override any duty to the client .
[91]

Whilst, as I have mentioned above, we have to be careful about drawing analogies from the civil sphere given [92]

that there are quite distinctive approaches to expert evidence, in this issue like the rule on evidence as to the
ultimate issue there is a significant degree of overlap. In Cala Homes (South) Ltd and Others v. Alfred
McAlpine Homes East Ltd there was a lesson for any budding expert witness to take on board as Laddie J
[93]

ripped an experts evidence to shreds because of an attitude displayed in an article he had published where he
intimated that his opinion was that an expert should treat a judge as a rustic who could be susceptible to a
Three Card Trick by presenting an argument wholly favourable to the side instructing the expert. Laddie J
stated in this issue:

Most witnesses would not be prepared to admit at the beginning of cross examination, as Mr Goodall[the
expert], effectively did that he was approaching the drafting of his report as a partisan hired gun. The result is
that the experts report and then his oral evidence will be contaminated by this attempted sleight of mind [94]

Laddie J had admitted that Mr Goodall was an eminent Architect in his area but as a result of this tendency to
completely ignore his duty to the court and present a wholly one sided argument the judge stated that in
coming to a conclusion on the issues at hand in the case he had effectively ignored Mr Goodalls advice. This
is obviously an extreme example of somebody who tempted the wrath of the court by espousing a highly
derogatory opinion that judges could be deceived by the trickster expert. Nevertheless, the question that begs
itself is how many people read the article by Mr Goodall and accepted his advice? These people can go
undetected and their prejudicial advice could have a serious impact on the direction of the case . Furthermore
[95]

this problem is undoubtedly exacerbated by the pressures from clients on solicitors to produce partisan expert
witnesses. It is clear that this pressure will be of the utmost in a criminal case where the stakes for the client are
his liberty. The adversarial culture which reveres the art of advocacy and persuasion undoubtedly has its own
inimical pressures to win which it is hard to see being dissipated whilst the decision to call experts rests in the
hands of the respective parties. The solutions that have been suggested by reports such as Woolf have had little
impact so far and there are still reports of adversarial bias that surface regularly
[96]

The idea of imposing a duty of neutrality on an expert witness in an ironic manner exhibits the precise
ignorance of the true nature of science in the courts that causes so many problems in relation to expert
evidence. There is an unchallenged assumption that in relation to experts that somehow forensic science and
pure science are the same thing or at least share common principles. The main one for our purposes is the
assumption that they conceive all science as the disinterested pursuit of the truth under ideal conditions of
inquiry however in general most crimes do not start with ideal preconditions such as uncontaminated
[97]

environments and unlimited source material. The realisation of the extent to which behind this apparently
objective, definitive conclusion lies a succession of more subjective and equivocaljudgements impacts
[98]

considerably on the status we attach to experts. The problems is that as a general rule the answer I dont
know is rarely seen as an acceptable answer and any attempt to highlight these numerous subjective steps may
well be flawed and reduce the evidence to incomprehensible. It will be flawed primarily because many of the
subjective leaps may be subconscious.

A further dynamic that ought to be considered in marrying the role of the expert to that of the courts is the
simple fact that the system of criminal justice is not an out and out search for the truth . The complaint sheet,
[99]
which is served on an accused in a criminal case will usually see a summary of the facts of the case, the case
then proceeds on the truth of the allegation and not on the truth of the whole circumstances. Positing an expert
as an independent advisor to the court doesnt sit well with this position because it is inimical to the position of
the parties. If it goes to trial then the accused is pleading not guilty, in effect denying the allegation, the
defence are not going to call an expert witness who may give prejudicial evidence for their side. An interesting
judgement was handed down in the case of Manchester City Council v. B by Justice Bracewell because it
[100]

dealt with two medical experts who were declared to have exhibited a considerable degree of disagreement . [101]

In this case there was no discussion of adversarial bias however the judge did refer valuably to her thought
process. She felt that the distinctive conclusions that the scientists came to in this case where not as different as
they first appeared because:

Each expert draws on their own clinical experience together with the research evidence. It is not, and cannot
be, an exact science because assumptions frequently have to be made by medical experts as to the basic
underlying and background facts and any differential diagnoses

Justice Bracewell seems here to be making a point which goes directly to the heart of the issue in this case
which is that adversarial bias is one factor but the nature of forensic science is another. This case is not overly
reported and I only found reference to it in one article and even then it was fleeting. However, I think that as
[102]

we begin to build up a healthier understanding of the controversies that the role of the expert evidence can
raise, this dicta suggests taking a novel and simplistic approach to expert evidence which is to take as a pre-
[103]

requisite that scientific differences can be weighed in an ordinary judicial manner with reference to underlying
assumptions that experts may have made. The recognition of scientific conclusions being sensitive to their
initial conditions is hardly revolutionary but laid down in some form of statutory or informal guidance to the
[104]

judiciary this kind of approach could significantly impact on the coherence and unanimity of decisions on
expert evidence.

A different approach was suggested in the case of Re C where the judge was of the opinion that there ought
[105]

to be collaboration between all the experts brought before the court before they presented evidence. The advice
presented ought to be in the form of two conclusions on each of the two competing allegations. This approach
whilst in some ways beneficial also has to be criticised given that these conclusions are discussed out of the
courtroom and opinions may harden where before they were more flexible.

The Criminal Justice Act 2003 now requires the defence to disclose any medical reports that it may
commission in the preparation of the case, whether presented in evidence or not. The problem with this
situation is that it is far from clear that this will somehow help overcome any adversarial bias on the behalf of
experts or deal with the problem of the nature of the adversarial system. It will merely suppress the use of
experts by defence agents, even in cases where expert evidence could be of vital importance. The rationale for
such a change is difficult to accept as the only people who would take such a blind risk are those with nothing
to lose. Perhaps those in authority take the view that the innocent have nothing to fear . Any proponents of
[106]

that particular view should ask Sally Clark if she feels the innocent have nothing to fear from the use of
experts.

The issue of the role of the expert is one which is fraught with difficulty and contradictions. Science is not
suited to give definitive advice on one side of the problem, therefore different scientists will come to varying
conclusions; the judiciary has no such luxury it must come to one definitive solution. The adversarial
system prima facie would seem to be the best forum for such differences of opinion to be resolved in. The
classical notion of two opposing sides evincing the most cogent evidence on their side putting all the evidence
before an independent judge in theory seems ideal. However, the adversarial bias and the tendency of experts
to overstate their science or present their conclusions as definitive are unhelpful and could lead to serious
miscarriages of justice. The issue certainly seems to fit the colloquial saying damned if you do and damned if
you dont.

4. Daubert & The Extent to which we utilise Expert Evidence

This is the final section of our discussion of the general principles of Expert evidence and touches on a number
of the issues that we have discussed before in regards the admittance of expert witnesses. In the American case
of Daubert v. Merrell Dow Pharmaceuticals Inc. the United States Supreme Court discussed when the courts
[107]

generally ought to admit expert evidence and the test that they formulated has controversially been used
around the globe. This subject matter more than any has churned out a library worth of resources, the full
breadth of which it is not possible to give here. This issue is particularly controversial in the U.S.A however,
whilst this issue is extremely important and raises a lot of insightful points we must avoid becoming blinkered
and realise that the sociological pressures of the world of Expert evidence can be particularly demanding on
any expert in particular the lack of suitability for the presentation of scientific hypothesis in determinative
statements of fact in the trial setting .
[108]

The simple wording of the judgement belies its effect on the role of the judge in allowing expert evidence the
court stated that the trial judge must ensure that any and all scientific testimony or evidence admitted is not
only relevant, but reliable . The concept of reliability has lead to the casting of the judiciary as the
[109]

gatekeepers in this respect and the Daubert court emphasised three factors which would generally guide the
judiciary in coming to a decision over the reliability of an expert . The first was whether proper methods of
[110]

hypothesis testing were used, flowing from this the judge ought to be able to tell whether the result was
falsifiable. Furthermore they need to consider the failure rate of the method and the standards controlling the
technique in question. Thirdly, they ought to consider the level of peer-review and acceptance that such
techniques generally attract in the scientific sphere that the work is concerned with. The court
in Daubert summed up by stating that their may well be a place for the test of general acceptance:

Widespread acceptance can be an important factor in ruling particular evidence admissible, and 'a known
technique which has been able to attract only minimal support within