Evidence - opinion evidence

  1. Four exceptions to the rule against opinion:
    • Identity
    • Feelings, mental or physical condition
    • Handwriting by non-expert
    • Matters of impression and narrative
  2. Test of admissibility from Cross on Evidence
    The field is sufficiently well established to pass the ordinary tests of relevance and reliability
  3. Psychological evidence re whether a suicide note was genuine or not was rejected
  4. An expert on earprint evidence was allowed in the CofA (caused a miscarriage of justice)
  5. Professional qualifications are not a necessity
    Silverlock - solicitor who studied handwriting in his spare time could be an expert on handwriting
  6. Expert evidence which differs from the majority of others in the field will not necessarily be inadmissible
    Robb - voice identification techniques not generally accepted in the field, but the expert was admitted on the basis that D could contest the evidence
  7. Expert evidence from a paediatrician was not necessary to assess the age of a child in a photograph
  8. Psychopharmacologist called to give evidence about the effect of alcohol on the brain, re whether the defendants knew if the victim was consenting
    Ugoh - evidence rejected on appeal
  9. Jury did not need to hear an expert to say how  a normal man would be likely to react
    Turner - D killed his gf and claimed he was provoked because she had told him she was pregnant by another man and had been working as a prostitute
  10. A party cannot call a witness and then (without more) call an expert to say why the witness is reliable
  11. Test for mental abnormality
    Masih - IQ below 70
  12. Severe personality disorders which are not technically mental illnesses can be treated as mental abnormality
  13. Cannings, CofA
    Cot death case - If the trial hangs exclusively or almost exclusively on a serious disagreement between experts as to cause of death, it would be unwise to proceed without other evidence.
  14. Cut-throat defence - two defendants charged with murder. One was allowed to call expert evidence saying the other had a sadistic personality
    Lowery and King
  15. The jury should not be told that they are entitled to reject expert testimony on matters of FACT (although they can reject expert opinion)
  16. It is part of the expert's duty to consider the material available in his field
    Abadom - expert relied on Home Office statistics
  17. Expert evidence was pure hearsay and not allowed
    Edwards - drug centre employee was not allowed to appear as an expert using anecdotal evidence from drug users
  18. What does Howard say about bias and court appointed experts?
    • 1) The current adversarial system is the best way to deal with biased experts
    • 2) It is unlikely that a court appointed expert would be completely free from bias
  19. What does Howard say about efficiency and constitutional rights (re court appointed expert)?
    For the defendant's rights to be upheld he must be able to cross-examine the expert. But to do this, he would require his own expert.
  20. Who looked at France as an example of a system that uses court appointed experts?
  21. Who said the current system allows the defence to 'shop around' until they find an expert who will say what they want them to?
  22. Who said that cross-examination can distort the evidence of expert witnesses and probably discourages the best from appearing?
  23. What system does Spencer recommend?
    Court appointed expert - produces report which is circulated to the parties, then discussed at a pre-trial hearing
  24. What does Roberts say about the Bonython test?
    It has only been accepted in England because we have no other principles.
  25. What is the test used for reliability of expert evidence?
    • Bonython (Australian case)
    • 1) Is the subject matter such that a layman would be able to form a judgment on it?
    • 2) Does the subject matter form part of a body of knowledge recognised as a reliable body? And does the expert have sufficient experience in the field?
  26. It was said that the ordinary tests of relevance and reliability should be used for expert evidence, not an enhanced test of reliability.
    Luttrell (lip reading evidence)
  27. In what case was the Bonython test accepted in English law?
  28. Who said that the Bonython test has not been properly analysed by the English courts?
    Edmond and Roberts
  29. What have the Law Commission proposed?
    A statutory test of reliability
  30. What is the Law Commission's proposed test of reliability?
    Expert evidence is sufficiently reliable if 'soundly based' (list of factors which will make a conclusion unsound)
  31. What is the Law Commission's stance on court appointed experts?
    Crown Court judges should be able to appoint independent experts in exceptional circumstances, to assist with the question of reliability
  32. Who said that the problem with the Law Commission's proposals is they require judges to have a high level of scientific competence?
    Edmond and Roberts
  33. What do Edmond and Roberts recommend?
    A multi-disciplinary advisory panel to advise on the reliability of scientific methods
Card Set
Evidence - opinion evidence
Evidence - opinion evidence