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Four exceptions to the rule against opinion:
- Identity
- Feelings, mental or physical condition
- Handwriting by non-expert
- Matters of impression and narrative
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Test of admissibility from Cross on Evidence
The field is sufficiently well established to pass the ordinary tests of relevance and reliability
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Psychological evidence re whether a suicide note was genuine or not was rejected
Gilfoyle
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An expert on earprint evidence was allowed in the CofA (caused a miscarriage of justice)
Dallagher
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Professional qualifications are not a necessity
Silverlock - solicitor who studied handwriting in his spare time could be an expert on handwriting
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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
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Expert evidence from a paediatrician was not necessary to assess the age of a child in a photograph
Land
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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
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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
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A party cannot call a witness and then (without more) call an expert to say why the witness is reliable
Robinson
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Test for mental abnormality
Masih - IQ below 70
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Severe personality disorders which are not technically mental illnesses can be treated as mental abnormality
Ward
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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.
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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
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The jury should not be told that they are entitled to reject expert testimony on matters of FACT (although they can reject expert opinion)
Anderson
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It is part of the expert's duty to consider the material available in his field
Abadom - expert relied on Home Office statistics
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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
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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
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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.
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Who looked at France as an example of a system that uses court appointed experts?
Spencer
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Who said the current system allows the defence to 'shop around' until they find an expert who will say what they want them to?
Spencer
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Who said that cross-examination can distort the evidence of expert witnesses and probably discourages the best from appearing?
Spencer
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What system does Spencer recommend?
Court appointed expert - produces report which is circulated to the parties, then discussed at a pre-trial hearing
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What does Roberts say about the Bonython test?
It has only been accepted in England because we have no other principles.
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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?
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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)
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In what case was the Bonython test accepted in English law?
Luttrell
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Who said that the Bonython test has not been properly analysed by the English courts?
Edmond and Roberts
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What have the Law Commission proposed?
A statutory test of reliability
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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)
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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
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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
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What do Edmond and Roberts recommend?
A multi-disciplinary advisory panel to advise on the reliability of scientific methods
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