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Expert Evidence by Z1Z6njB

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									                                                                                                           Louise Ellison
                                     CRIMINAL EVIDENCE 2002

                                 Evidence of Opinion and Expert Evidence


1.   The ‘Opinion’ Rule

2.   Non Expert Opinion
     Road Traffic Regulation Act 1984, section 89(2)

3.   Expert Evidence

(i) Competence
    Loake (1911) 7 Cr App R 71
    Inch (1989) 91 Cr App R 51
    Silverlock [1894] 2 QB 685
     ‘It is true that the witness who is called upon to give evidence founded on a comparison of handwritings must be
     peritus [skilled]; he must be skilled in doing so; but we cannot say that he must have become peritus in the way of
     his business or any definite way. The question is, is he peritus? Is he skilled?’

     Robb (1991) 93 Cr App R 161
     ‘... the courts would not accept the evidence of an astrologer, a soothsayer, a witchdoctor or an amateur
     psychologist and might hesitate to receive evidence of attributed authorship based on stylometric analysis... A
     defendant cannot be fairly asked to meet the evidence of opinion given by a quack, a charlatan or an amateur.’

     Gilfoyle [2001] 2 Cr App R 161
     Criminal Procedure Act (Insanity and Unfitness to Plead) Act 1991, section 1(1)


(ii) Matters calling for expertise
     Expert opinion evidence is admissible on matters that are outside the competence of the court
     (e.g. sanity, forensic evidence, genetic fingerprinting, handwriting, voice identification,
     ballistics, etc).

     Turner [1975] QB 834
     ‘An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the
     experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own
     conclusions without help, then the opinion of an expert is unnecessary.’

     Problems have arisen in relation to opinion evidence proffered by psychiatrists and
     psychologists.

     (a) Disproving mens rea

     Turner [1975] QB 834
     ‘The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his
     opinions on matters of human nature and behaviour within the limits of normality any more helpful than that of the
     jurors themselves; but there is a danger that they may think it does... Jurors do not need psychiatrists to tell them
     how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of
     life.’ per Lawton LJ




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Smith [1979] 1 WLR 1445
Chard (1971) 56 Cr App Rep 268
‘... it is not permissible to call a witness, whatever his personal experience, merely to tell the jury how he thinks an
accused man's mind - assumedly a normal mind -operated at the time of the alleged crime with reference to the
crucial question of what the man's intention was.’ per Roskill LJ

Toner (1991) 93 Cr App R 382
Coles (1995) 1 Cr App R 157
Masih [1986] Crim LR 157
Lowery [1974] AC 85
Emery (1993) 14 Cr App R 394
Hurst [1995] 1 Cr App R 82
Bowen [1996] 4 All ER 837
Robinson [1994] 3 All ER 346
O’Brien Hall and Sherwood [2000] Crim LR 676


(b) Confessions

Silcott, Braithwaite, Raghip (1991) The Times 9 December
Ward [1993] 2 All ER 577, 641
‘...the evidence of a psychiatrist or a psychologist may properly be admitted if it is to the effect that a defendant is
suffering from a condition not properly described as a mental illness, but from a personality disorder so severe as
properly to be categorised as mental disorder.’ per Glidewell LJ.

O’Brien Hall and Sherwood [2000] Crim LR 676
Weightman [1991] Crim LR 220


(c) Credibility

Robinson [1994] 3 All ER 346
‘In our view the Crown cannot call a witness of fact and then, without more, call a psychologist or psychiatrist to
give reasons why the jury should regard the witness as reliable.’ per Lord Taylor CJ

Toohey v MPC [1965] AC 595
‘Human evidence... is subject to many cross-currents such as partiality, prejudice, self-interest and, above all,
imagination and inaccuracy. Those are matters with which the jury, helped by cross-examination and common
sense, must do their best. But when a witness through physical (in which I include mental) disease or abnormality
is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to
reveal this vital hidden fact to them...’ per Lord Pearce.


‘Syndrome evidence’/ ‘social framework evidence’

Raitt, ‘Rape Trauma Syndrome: Its Corroborative and Educational Roles’ (1997) 24(4) Journal
of Law and Society 552
Raitt, Zeedyk, The Implicit Relation of Psychology and Law, Women and Syndrome Evidence
(2000)
Scully, ‘Expert Distractions: Women who Kill, their Syndromes and Disorders’ in (eds.)
Childs, Ellison, Feminist Perspectives on Evidence (2000) pp191- 209



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(iii) Criticism of the ‘Turner principle’

     Durston, Expert Opinion Evidence in Criminal Trials: A Review of the Current Position,
     (1996) 160 JP 837
     MacKay, Colman, Excluding Expert Evidence: a tale of ordinary folk and common experience
     [1991] Crim LR 800
     MacKay, Colman, Equivocal Rulings on Expert Psychological and Psychiatric Evidence:
     Turning a Muddle into a Nonsense [1996] Crim LR 88
     Redmayne, Expert Evidence and Criminal Justice (2001) chapter 6



4.   Procedural Reform

     Ward [1993] 2 All ER 577
     ‘... we have identified the cause of the injustice done to the appellant on the scientific side of the case as stemming
     from the fact that three senior forensic scientists at RARDE regarded their task as being to help the police. They
     became partisan.’

     Alldridge, Scientific Expertise and Comparative Criminal Procedure, (1999) 3 International
     Journal of Evidence and Proof 1
     Howard, The Neutral Expert: A Plausible Threat to Justice, [1994] Crim LR 98
     Spencer, The Neutral Expert: an implausible bogey [1991] Crim LR 106
     Redmayne, Expert Evidence and Criminal Justice (2001) chapter 7

     Royal Commission on Criminal Justice, Report (Cm 2263) (1993) para. 9.73:
     ‘Some of our witnesses would go further ... In their view expert evidence should be given by a court expert, either
     instead of or in addition to the experts who appear for the prosecution and defence. Alternatively, some would
     recommend that judges should sit in the relevant cases with an expert assessor or assessors. We have considered
     these suggestions but are not in favour of them. A court expert, even if subject to examination and cross-
     examination, would by implication carry more weight than an expert for the prosecution or the defence.’




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