The Role of the Expert Witness

Questions: 1. Discuss the requirements of competence to give expert evidence and consider whether Dr Jacobs is competent to give expert evidence in the relevant field?2. In order to be produced as evidence, what information ought Dr Jacobs report contain? What are the consequences of not including all of this information in the report; can it still be relied upon in court?3. Miss Turner, the solicitor representing TAYLOR has been served with a copy of Dr Jacobs report. She would like to clarify some issues with the expert and would like to ask the expert some questions. In the circumstances, is Miss Turner allowed to ask the expert such questions and if so, how should the answers to these questions be dealt with? 4. Who determines whether expert evidence is admissible and what factors will be taken into consideration when determining its admissibility. 5. Before trial, Counsel for TAYLOR indicated that she would like to cross examine the police informant. The Judge ruled that this was not possi ble. With reference to Public Interest Immunity discuss why you think the Judge has reached this conclusion? Answers: Introduction: In the course of a criminal proceeding there are several stages like production, charge, evidence (examination in chief and cross examination), argument and judgment. During the trial the most important phrase is the evidence period. In evidence period all the relevant evidence are presented before the court and in that phrase the statements of the witnesses are recorded in order to conclude the matter. As opined by Cryer (2010), depending upon the statements made by the witness in the stage of evidence, the Judge arrives at the judgment. If it is not possible for the court to ascertain any particular matter of fact relating to the case pending before the then the court may ask for an expert advice. In other words, depending upon the expert advice and believing on the competency of the expert in relation to that matter, the court takes the advice into consideration. As argued by Jacobs and Wendel (2010), in order to convince the adjudicator in a criminal proceeding the advice given by the expert is very influential. As per the criminal procedure code of the United Kingdom, advice provided by a competent expert is considered as a good evidence and the in case of any fault in the advice is soughed then the advice may be set aside but the expert will not be liable under the prosecution. In this particular article the researcher is going to analyze the current case study where Taylor along with the other defendants based on whom the research work is going to be conducted. The researcher in this section of the article is going to analyze what are the significant approaches needed to be applied in this context. It helps in developing the legislative assistance in this respect. The researcher is going to analyze the criminal proceedings. Apart from that within the purview of this revise the role of the expert as to its advice in a criminal proceeding are also to be elaborated. 1. Requirements of competence to provide expert evidence in a criminal trial: Anyone can be an expert provided that person must have good knowledge and experience regarding any particular discipline or filed which may be expected more than a general layman. In order to reach a just and sound decision the court takes into account the advice given by a person depending upon his immense amount of knowledge regarding any particular filed with an intention to assist the court of law to understand the issues (Zheng, 2014). As argued by Sloane (2011), any person who has more knowledge and experience than a layman upon a particular field for a long period of time can be consider as an expert of that particular field. In a court preceding the expert makes available his or her knowledge to the court in order to assist the court to understand that particular matter in relation to conclude the judgment. According to the rule 702 of the Federal Rule of Witness, a person may be qualified as an expert witness by skill, knowledge, experience, training or education. It may be testified in a form of opinion or otherwise: the knowledge of the expert regarding technical, scientific or any other special knowledge will assist. the testimony is depended upon the sufficient amount of data or fact. the testimony is based on reliable method and principals. application of the reliable method or principals upon the fact. As opined by George (2009), if any person posses immense amount of knowledge and experience upon any particular field and that knowledge is beyond to be expected from a general layman then such a person may be consider as an expert of that field. An expert should have the intension to assist the court in relation to settle the disputes by eliminating the ambiguous portion of the facts pending before the court. In the case of Phillips Ors v Symes Ors, the court of law held that an advice provided to the court in relation to understand any particular matter can be taken into consideration if that advice has been given by a person who has more knowledge and experience in that filed than a general individual. The basic criteria for a person to be consider as an expert is that the person must have good knowledge and vast experience in relation to any particular field and that knowledge have to be far beyond than the other individuals. Cresswell, J. has identified the basic responsibilities of an expert witness those are;1. The advice given by the expert must be independent and uninfluenced. If there is any report from the expert then the report must be prepared with due diligence.2. An expert advice has to be unbiased and has been given with an intension to assist the court to understand the ambiguous elements.3. An expert advice should not be given by considering the role of the advocates in the proceedings.4. The facts and assumptions should be mentioned by the expert depending upon which the advice or report has been formed.5. If the any particular issue is beyond the scope of his expertise then it should be notified to the court.6. If an expert opinion is not adequately researched due to lack of sufficient data then it has to be mentioned before the court and also to be mentioned that the given opinion is not more than a provisional one.7. In an expert report the qualification as to the truth must be mentioned .8. After submission of an expert report if there is any change that is to be needed in that report then it must be communicated with the court immediately. In the case of Derby Co. Ltd. and Others v. Weldon and Others, the court of law held that good knowledge and experience forms expertise but only expertise is not sufficient to be taken into account as an expert in court proceedings but the expertise should be enough capable to eliminate the ambiguities to help the court to understand the fact by the application of the expert knowledge. Competency of Dr. Jacobs: As per the given information Dr. Jacobs have good knowledge and experience in the field of forensic science. He is doing work for last ten years into the forensic filed which is a very long period of time. Apart from that Dr. Jacobs has been specialist in relation to mobile phone forensic and he has immense knowledge and experience in the field of data recovery and GPS placement. Dr. Jacobs regularly practices the works relating to mobile data recovery, location tracking, acquisition of phone evidence etc and has been recognized as one of the best practice conducer in this field. Apart from that Dr. Jacobs has made his knowledge available to the court of law in order to decide the case with reference to the report given by him. Due to his immense experience and knowledge it can be consider that his knowledge is far beyond that to be expected from a layman. In the case of Polivitte Ltd v. Commercial Union Assurance Co. Plc, the court of law held that an opinion can be consider as an expert opinion if such an opinion is provided by person who expertise knowledge and experience in that field and such an opinion has been formed with the application of the knowledge and experience with due diligence and with proper research. Without additional knowledge than the normal layman upon any particular matter or field no person can be considered as an expert of that field. Experience of any expert indicates the nature of responsibility and credential of the expert. As opined by Jefferson (2007), if an report or advice given to the court by person who has expertise knowledge regarding that field then such a report shall be consider as an expert report or expert advice. Long experience and vast knowledge are the two basic criteria to form expertise upon any particular matter. For considering any person as an expert relating to any particular field the intension of that person in relation to assist the court upon the expertise matter is also an essential element. Apart from that the amount of responsibility vested upon that person is also taken in to consideration as to the formation of any expert advice. As argued by Garoupa (2009), expertise is constructed depending upon the knowledge and experience of the person upon the subject matter. In the legal field exert opinion is one of the most significant portion in a criminal trial. Expert report and expert advice to provided to the court with due diligence and if there is any scope of uncertainty then it has to be notified to the court of law to whom the advice or report has been provided. Hence, it has became easy to that Dr. Jacobs has all the quality to be consider as an expert in the field of mobile forensic. His experience, knowledge and regular dealings with the same kind of subject matter and his intension to assist the court in relation to eliminate the ambiguities is enough capable to convince the court to consider Dr. Jacobs as an expert of that field. 2. Information that should be provided in the expert report: As stated by DiacÃÅ'Å’ikovaÃÅ'  (2010), in a criminal trial where the adjudication is depended upon the expert advice or the expert report relating to any particular matter, the expert report should posses the followings;1. The report must be firm and constructed with due diligence and proper application of knowledge.2. If there is any scope of ambiguity or any kind of adversity then it has to be mentioned in the report.3. If the subject matter falls beyond the purview of the expertise then it has to be mentioned to the court.4. If due to insufficient data the report has not been formed proper research then it has to be mentioned in the report.5. All the information and details that leads the conclusion of the report should be provided in the report and in relation to that if there is any questionnaire or issue which has been assumed for the purpose of formation of the report then such issues and questionnaire has to be specified in the report. 6. In the case of Whitehouse v. Jordan, the court of law held that all the issues and sources should be given in every expert report. If there is any problem that has beenfaced the expert while conducting the research procedure then such issues should be mentioned in that report. Depending upon an expert report, the court forms decision regarding any particular case. So, it is the duty of the expert to mention all the facts and circumstances relating to the research and conclusion of the report.7. Green and the legal society of Scotland held observed that an expert report should be independent, uninfluenced and unbiased. All the points that lead to the final decision of the report should be specified in the report for the purpose of easy understanding and identification of the grounds of the decision by the adjudicators. In this regard the report made by Dr. Jacobs should encompass with all the facts and scenario that led Dr. Jacobs to construct the conclusion of the report by stating that between 8am to 9am that phone was located in that area where the crime has been committed. Regardless, in the report Dr. Jacobs should mention about the facts relating to the owner of the mobile phone. Before specifying the location of the mobile Dr. Jacobs should provide sufficient evidence or document regarding that the mobile phone was in the possession of Taylor while it was located in the crime spot or it would be enough that the mobile phone belongs to Taylor. As opined by Parkinson (2010), apart from the main fact in issue all the related and subsidiary facts in issue should be mentioned in the expert report because of its delicate role in the judicial system. Consequences as to exclusion of information in the expert report: As opined by PolesÃÅ'† cÃÅ'† uk and Komarov (2011), it has been observed that if an expert report is not prepared with due diligence and the entire necessary requirements are not accomplished by the expert in his report then the court of law by applying its discretionary power may set aside the expert report or may order for further formation of the report in relation to the matter in issue. The English common law has recognized that the expert report is one of the most important aspects in the evidence period of any trial. Depending upon the expert report the merit of the case is determined and the decision of the case is also get influenced by the adequate expert report. In this regard the expert report should be formed properly and if there is any uncertainty relating to the authenticity or elements of the report then the court of law may reject the application of the report (Stutsman, 2014). In the case of R v Dallagher, it is the duty of the expert to mention all relevant facts and issues in the expert report. The nature of an expert report is very delicate in the judicial system and it is an influential aspect in relation to the formation of any decision or order. Conversely, if there is any doubt regarding the contents of the report then application of that report may be a compromise with the justice, hence, it should be rejected by the court or may call for the formation of a fresh expert report. In the famous American case of Daubert v Merrell, it was observed that an expert report is enough capable to change the entire scenario of a case, especially as to the decision or order given in relation to that case. For that reason if there is any scope of ambiguity in the concern expert report then the judiciary should not accept it. Though if the report has been made with due diligence in relation to the fact in issue and all research conducted in favour of the report in a satisfactory manner then depending upon the discretionary power the court may not reject such an expert report but the court may order to mention the relevant grounds regarding the conclusion of the report. In the case of R v Gilfoyle, the court of law held that an expert report should be prepared independently and the judicial system should have faith on the credential of the expert in relation to its report but due to the delicate nature of the expert reports, if there any scope of indecency then the court may immediately reject the report but in this regard the expert cannot be brought into any legal action though if the expert found guilty under the provision of any relevant law in force then the expert may be penalized. Reliability in case of exclusion: In the case of R v Walker, it has been observed that if the expert report is prepared by the concern expert with due diligence and by the application of proper knowledge and experience and if it is showed from the contents of the report then in spite of the fact that there is some of the element is not mentioned, the reliability of the report will remain same (Trotter, 2013). As opined by Schabas (2009), if in a criminal case the expert the decision of the case is mainly depends upon the expert opinion or the expert report and from the report it has been indicated that the report has been constructed appropriately along with reasonable diligence then that report should be accepted by the court though there may be some of the elements missing. But if the report is not prepared adequately then in spite of encompassing all the facts the report should be rejected by the court. Hence, it can be said that the reliability of the report shall depend upon the procedure based upon which the report has been formed and also the necessity of the report in relation to determine the crime and the meanse rea of the case. If the contents of the report are capable to indicate the authenticity of the report then it may be accepted otherwise there is no option for the court but to reject it. 3. Miss Turner may ask the questions to the expert only at the stage of cross examination. Mostly, in the cross examination questions asked by the defence lawyer in relation to the statements made by the witness in the examination in chief, taken by the Public Prosecutor. But if there is any ambiguity relating to the document provided by the expert then the defence lawyer is entitled to ask the relevant questions. As opined by Stafford Smith (2012), all the implied and expressed statement made in the procedure of examination in chief during the evidence period of any case, are liable to be cross examined by the other side. During the process of cross examination the defence lawyer is entitled to get clarified by the witness in relation to all ambiguity relating to the statements made in the chief examination. In the case of R v Randall, the court of law held that all documents submitted by the prosecution in a criminal trial are liable to be cross examined, especially if those documents are submitted depending upon the credential of any person. The person who has formed any document and that has been submitted to the court of law for the purpose of adjudication of any particular case then such a person may be cross examined based upon such document submitted (Simon, 2012). In this regard the document that is the expert report which has been submitted to the court by the prosecution may be consider as evidence provided in chief and for that reason the law permits the defence lawyer Miss Turner to cross examine the producer of the document in relation to its contents and the procedure of its formation. Criminal Procedure and Investigations Act 1996 permits the defence lawyer to cross examine all documents submitted by the prosecution. Sec. 6A of the act specified about the defence statements in a criminal proceeding. The mentioned statute is also permits the defence to clarify all doubts regarding the documents as evidence against the accused. Sec. 6A considers all documents submitted in trial by the prosecution as the documents against the accused and it is capable of being questioned (Padfield, 2006). As argued by Emanuel (2009), any document or evidence used against the accused is liable to be crossed by the defence attorney and if there any ambiguity on the part of the accused then it may be resolved during the process of cross examination in the trial. Depending upon the evidences and the arguments the court of law forms judgment. In the case of R v Turner. Keane, the court of law observed that in the judicial system of United Kingdom, the English common law has given the right to the defence in a criminal trial to examine all statements made against the accused person and in the course of the evidence period, Ld. Attorneys are entitled to take the evidences either by examination in chief or by cross examination (Mcivor, 2013). Hence, it has became clear that the defence lawyer that is Miss Turner is entitled to question the expert in relation to the report submitted into the court as an expert report. The statements made by the expert while answering the questions of the attorney shall go into the record, depending upon which the decision shall be made by the judge. Questions to be dealt with: In this regard all questions that are to be asked by the defence attorney Miss Turner to be answered by the expert very gradually and with full authenticity by the concern expert. If there is any ambiguity regarding the contents of the report and in relation to that any question asked by Miss Turner then it has to be clarified by the expert and the expert should indicate about his clear and unambiguous knowledge regarding the subject matter (Madhloom, 2012). As opined by Fletcher and Christopher (2013), it is the responsibility of the witness to answer all the relevant questions regarding the matter in dispute and it is not only essential for clarifying the ambiguity of the accused as well as the attorney but also significant for the court as depending upon the statements of the witnesses the adjudicator pronounces the judgment. Bridge, J. stated in a number of cases that in the course of cross examination the faults and drawbacks of the investigation in criminal case can be identified by the court and the statements has large significance in the trial. It is the duty of every witness to state the words carefully as a mere mistake may change the entire scenario of the case. In the course of the cross examination it is the responsibility of the witness to clarify all ambiguities regarding the statement made in the process of examination in chief (Mackenzie, 2011). Hence, it is the duty of the expert to answer all questions asked to him by Miss Turner regarding the statements made by him before and also about the contents of the report. Even the procedure of making the report by the expert may be asked and it has to be answered by the expert in gradual manner with diligence and all answer shall be made as to the best knowledge of the expert. 4. At the time of a criminal proceeding the adjudicator is the supreme authority in relation to decide any fact or issue relating such a case. The expert report provided to the court by the prosecution is subject to the acceptance by the judge adjudicating the matter. The judge by applying the discretionary power may exclude any material from the expert report and the admittance of the expert advice is also depends upon discretion of the judge while adjudicating the matter. If at the time adjudicating a criminal preceding the judge is satisfied regarding the authenticity and the quality of the expert report then the judge may make such a report admissible in that criminal case (Juss, 2014). As opined by Herlin-Karnell (2012), in any court proceedings the supreme legal authority is the judge. Only judge has the power to apply the laws into the case pending before the court. Whether any document, report, advice or statement is admissible in a criminal case or is completely depends upon the discretion of the judge. In case of an expert report the judge may appoint an assessor for the purpose suggestions in relation to the admittance of such report but the final verdict depends upon the discretion of the court (Jefferson, 2007). In the case of R. v. Mohan, the court of held that the acceptance or admittance of any expert report is subject to the adjudication of the judge before whom the matter is pending. If the court is not satisfied with the elements and the process of formation of the report or the report has been constructed in such a manner that the point of ambiguity remain same then the judge may reject the report may call for a further report to be submitted (Herring, 2007). In the case of Daubert v. Merrell Dow Pharmaceuticals, it has been observed by the court of law that in a court proceeding there is no one other than the judge is empowered to take decision regarding the admittance or non-admittance of any relevant document in relation to the case pending before the court. Though if necessary then by applying the discretionary power of the court an assessor may be appointed by the curt in relation to provide suggestions relating to the level of acceptability of any particular type of documents (Henham, 2009). As argued by Jackson and Summers (2012), in any court proceeding no decision can be formed by anyone other than the judge holding the adjudicating position in that case. The judge is empowered to take all the necessary decisions in relation to conclude any case pending before the court. The judicial system of United Kingdom does not permit any person but the acting judge to take decision regarding any portion of the case though advice may be taken by the court relating to any particular matter (Hamin et al., 2014). Hence, while deciding a criminal case the admittance of any expert report is completely depends upon the judge. No one is empowered other than the judge, to take any decision regarding the admissibility of the expert report in any case pending before the court. 5. The judge of the case held such a decision because of the following grounds; The Crown court has recognized the principals of Public Interest Immunity. It has been identified that in the course of investigation of a criminal case the police authority may come into an interaction with a number sensitive and delicate issue which may affect the case from the part of the prosecution or may be from the part of the accused. On the other hand, the risk of compromising with the public safety cannot be ignored. Hence any fact relating to the investigation procedure of a criminal case should not be disclosed (Hale, 2014). The crown court also held that disclosure of material fact relating to the police reports or the investigation process depends upon the merit of the case. Depending upon the scenario and the facts of the case the court may order the prosecution to show the relevant documents. The defence has the liberty to challenge the decision of the court in relation to disclosure of the documents (Grace, 2014). The provisions of the Criminal Procedure and Investigation Act 1996 states that any document relating to the police reports or the police investigation of a case should not be disclosed to the defence and the matters should be kept in the hands of the Judge and the prosecution (Gowland and Walker, 2014). Part 25 of the Criminal Procedure Rules 2005 has recognized the concept of Public Interest Immunity. In this part of the statute it is mentioned that for the purpose of public safety and for securing the merit of the case, any fact relating to the investigation of the case should not be disclosed to anyone other than the judge and the prosecution. Disclosure may cause harm to the prosecution and may inflict some sought of undue benefit to the accused. Apart from the further investigation procedure may be hampered due to disclosure of the material facts relating to the investigation of the case (Gowland and Walker, 2011). Attorney Generals Guideline of UK has specified that any disclosure as to the material fact in relation to investigation process of any case may not only cause damage to the further investigation but it is enough capable to change the way of the case and may influence the decision of the court in wrong way. All material facts relating to investigation process should be kept only to the judge and to the prosecutor (Davies, 2010). As opined by Cryer (2010), the court of appeal protocol has recognized the importance of secrecy of the material facts relating to police investigation as it may play an influential role in the investigation procedure and it may also violate the rule of the equity and justice. Disclosure of any relevant fact of the investigation procedure to the defence or to any other person apart from the judge and prosecution may affect the entire judicial procedure of the case but if there is anything mandatory to disclose then the defence lawyer may appeal before the court of law relating to such disclosure (Chalmers, 2013). Section 21 of the CPIA 1996 has introduced a new set of law by set aside the traditional common law in relation to the duty of the prosecutor to disclose the material facts relating to investigation of the case. Now the section says that there is no duty on the shoulders of the prosecution to disclose the materials relating to police investigation even on the demand of the documents by the defence the prosecution is bound to provide it (Arnell, 2013). On the other hand, section 7A (8) of the CPIA 1996 states that the prosecution should not disclose any relevant document to the defence without the prior permission of the court in such regard. By the order of the court the prosecutor should disclose the material facts of investigation of the case (Emsley, 2008). As stated by Schabas (2009), disclosure of any fact relating it police investigation may cause damage to the secret cources of the police, the method of investigation, the current position of investigation and also to the public interest as all these elements are not only concern about a single case rather it will harm the future investigation process on other cases. It could be a great drawback for the public interest (Naughton, 2010). In the case of Conway v Rimmer, the House of Lords observed that Public Interest Immunity should have the upper hand in every criminal proceeding. Not only for the interest of the public equity nut also for the purpose of protecting the fundamentals of the case pending before the court, any material fact in relation to the investigation procedure conducted by the police should not be disclosed to any person other than the judge and the prosecutor (Bohlander, 2009). Conclusion: After the above discussion it can be summarized that in a criminal case the role of an expert witness is one of the most important elements. The credential of the expert depends upon the accomplishment of the rules framed by various laws of the nation. The discretion of the court has the supreme power to adjudicate the merit of the case along with the admittance of the relevant documents in relation to the case pending before the court of law. At the last the application of the rule of Public Interest Immunity (PII) upon the case has superiority over the other facts. References Books: Bohlander, M. (2009).Principles of German criminal law. 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