Use And Problems Of Expert Witnesses In Court Law Essay

Use And Problems Of undecomposed Witnesses In Court Law EssayIt is an ancient common law rule that on a subject requiring picky knowledge and competence, certify is admissible from retrievees who have acquired the necessary happyise on that study, and such learnes are known as adepts.1The foundation of the use of bright witness in philander was laid down by Lord Mansfield in Folkes v. Chadd2that the tactual sensation of scientific men upon proven facts may be given within their own science. Although flavor recount is inadmissible as a general rule, the main elision to this rule is the discernment of an right on matters resting within his talentedise, and this exception applies in both civil and criminal cases. Regarding the civil proceedings, the statutory recognition of the exception is reflected by section 58(1) of the Evidence Ordinance (Cap 8) that an well(p)s opinion is admissible on any relevant matter on which he is qualified to give adroit recite. Howeve r, there is an issue of potential conflict of interest on the honorable witness.3On wholeness hand, an expert witness has a paramount duty to assist the judicature on the other hand, he is make upd for his services by one of the shareies to a lower place the adversary system, which assumed a more partisan role for them at the expense of impartiality.4This essay aims to examine whether the aspiration of expert objectivity is realistic in our adversary system. In the next part, we shall discuss the problem of adversarial bias as good as the duties of expert witnesses. In part 3, the applicability of judicial system appointed experts in Hong Kong pass on be examined with reference to the inquisitorial system. In part 4, we will explore the problems associated with the small race of potential experts in Hong Kong, followed by the courts power in dealing with expert variations in part 5. Finally, a conclusion will be drawn in the last part of this paper.The problems associate d with expert witnessIt is often said that the principal danger of adversary expertise is motivational bias.5As expert witnesses are employed by one of the parties to the litigation and they would purposely mould their stacks to fit their clients proceedings. In fact, the problem of lack of objectivity in expert cause is not a new phenomenon. As early as in Lord Abinger v. Ashton6, Sir George Jessel said Undoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you, and expert witness may notwithstanding considered themselves as the paid agents of their employers. The problem of adversarial bias is as well as widespread in Hong Kong.7As identified in the retardation Report of the Working Party on genteel umpire Reform, a major problem concerning expert evidence is the partisanship and lack of independence among experts.8Thus, it is suggested by Professor Gary Edmond that partisanship may be an unavoidable feature of kno wledge production and expert opinion.9Another reason for lack of objective expert evidence is due to the problem of expert shopping, which is a process of selecting opinions from one expert after another, until the most favourable opinion to the partys case is found.10Since the choice of experts lies with the parties, the expert evidence is selected on the basis that would serve the best interests of their clients cases. Consequently the court does not necessarily obtain the most independent or objective expert evidence. The utilisation of selecting the most favorable expert is indeed a distortion of the rationale behind expert evidence as well as a dishonour to the administration of legal expert.2.1 The duties of expert witnessDue to the concern about the failure of experts to return an independent and objective opinion, a developed code of conduct has been sterilise out in National referee Compania Naviera SA v. Prudential dominance Co. Ltd. (The Ikarian control stick)11to clarify the duties of an expert witness. The most important parts are the first two numbered paragraphs, which stated that 1) undecomposed evidence presented to the Court should be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation12 2) An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise13. The Ikarian Reefer guidelines remain a good law in Hong Kong, and the relevant principles were set out in paragraph L1/58/7 of Hong Kong Civil Procedure 2009. The expert witnesss overriding duty to provide independent and unbiased assistance to court is also reflected in Order 38, rule 35A of the Rules of the High Court (RHC) as well as the Code of Conduct for Expert Witness in Appendix D of RHC. Further guidance is provided in Hong Kong Air Cargo Terminals Ltd. v. Commissioner of Rating and paygrade14that an expert also needs to ensure no omi ssion of material facts that could divert from his concluded opinion.Although the adversary system may not have provided an holy man environment for the expert witnesses to maintain their independence and objectivity from their clients, I believed that the promulgation of code of conduct would have raised awareness of the expert witnesses in encounter the courts expectations, so that they will be less easily manipulated by lawyers, which can tend to rein in the widespread problem of expert bias in Hong Kong.Court-appointed expertsApart from a code of conduct for expert witnesses, some commentators have recommended other ways to reduce the problem of expert bias, and one of them is the engagement of court experts with reference to the inquisitorial system. It is common for the court to appoint experts in many continental jurisdictions, such as Belgium, Germany and France. Unlike the way to appoint experts under the adversarial system, the expert witnesses are selected and remunera ted by an independent authority, usually the court rather than the parties, which may avoid the problem of adversarial bias.15Take an example of the French system of expertise, the say would normally commission the expert witnesses from a list of official experts, and they will be questioned by the judge.16The major distinction between the adversarial and inquisitorial system of justice is that the parties play a minimal role in locating evidence and they need not actively engage with the expert witness in court, as the expert witness is infrequently cross-examined by the defendants. As the court-appointed expert has little interaction with the parties, they are more likely to give an objective and unbiased opinion to the Court.Nevertheless, it is argued that the appointment of court experts under the inquisitorial system is contrary to the principles of the adversarial system of justice. Apart from the loss of right for parties to select their own expert witnesses, there are a num ber of arguments that go against the inquisitorial court-appointed experts. First of all, the main problem is that the court may place undue reliance on the evidence provided by the court-appointed expert, which may lead to an ultimate result that it would be the court-appointed expert instead of the judge who decides the case.17This is also highlighted by Lord Denning in In re Saxton that the appointment of a court expert in England is a rare thing, as the litigants realize that the court would attach great weight to the report of a court expert, and are reluctant to leave the decision of the case so much in his hands.18Second, it is difficult to ensure the validity or test the applicability of the expert evidence in inquisitorial systems due to lack of cross-examination and involvement of more expert opinion, which are fundamental features of the adversarial system. In the absence of challenges to expert evidence, its quality and reliableness is therefore doubtful as there is no w ay to test the correctness of the expert conclusion.19Moreover, the exercise of courts power to appoint an expert is rare under Order 40 of RHC in Hong Kong. It is indicated in the case of Nguyen Ho Others v. Director of Immigration20that the Court of Appeal has declined an invitation to appoint a court expert.Consequently, the inquisitorial court-appointed expert is difficult to integrate in our adversarial system, especially the important feature of cross-examination which encourages critical scrutiny of the expert evidence is lacking under the inquisitorial system.21It is also of my view that the adversarial expertise may benefit the fact-finder in another way by providing a range of perspectives or interpretations that allows verification of the validity and accuracy of the expert evidence in Court.Problems with small population of potential expertsAs Hong Kong is confronted with the problem of parties obtaining hired gun experts,22the concern of expert bias may also arise when the employer of the expert witness is the prosecution. This is particularly the case for criminal prosecutions, where the expert witnesses are commonly and closely connected with the police or prosecution authorities. In fact, the small population of available experts in Hong Kong would render the reliance on expert witnesses employed by the prosecution inevitable, for instance, police policemans may be called by the prosecution as witnesses to give evidence in drug cases regarding the average dosage of drug addictsetc. One may nonetheless argue that relying on the prosecutions own officers as expert witnesses to provide opinion evidence would prima facie cast a doubt on their independence and objectivity in that case. Thus, it raises the problem of whether it is possible to trap the officers of the prosecution from giving opinion evidence as an expert in his field to support the prosecutions case.In R v. Chung Chen Hsin23(Chung), a police officer ballistics expert, who was possib ly connected with the investigation, was called by the prosecution as witness to testify for them that the unusual weapon found in the defendants hand luggage was a firearm. The court has made some important points regarding the right of the prosecution authority to call its own officers as expert witnesses to offer opinion evidence. It is held that there is no requirement in a criminal proceeding where the expert witness ought to be independent of the prosecution authority, but a witness who is competent and the right way qualified to provide his expertise would suffice.24 reckon Stuart Moore also challenged the judgment in R v. Kai Tai Construction Engineering Company Ltd.25by claiming that it was not a material irregularity for the prosecution to have called a properly qualified expert from the same department responsible for that prosecution, and there must be flop reasons to cast a doubt on the expert called by the prosecution in order to justify the refusal to allow the pros ecutions own officers as expert witnesses.26Moreover, even the expert witness is so closely connected to the case that he may be biased in favour of the prosecution, it is ultimately a matter remained for the panel to assess the weight to be attached to his testimony and the question of admissibility is irrelevant.The rationale in Chung was reaffirmed in many recent cases, such as skag Ping Choi Another v. Secretary for Transport27, where the court held that an experts evidence was not inadmissible merely due to the fact that he or she was an employee of one of the parties to the case. With restrain human resources in Hong Kong, the fact that many expert witnesses have been employed by the party calling them is nearly inevitable, especially for the technical matters that require passing specialized experts to offer their opinion evidence.Despite the possible lack of independence of the expert witnesses employed by the prosecution, it has been made clear by the Hong Kong courts t hat the expert evidence would not be excluded merely on that basis. Even though the expert witness may have produced a biased opinion due to his or her vested interest in the outcome of the case, it is only relevant to the weight to be attached to that experts testimony rather than the admissibility of evidence.Expert diversityWith one of more expert witnesses giving opinion evidence at court, it is possible to have a clash of opinion between opposing experts. In fact, we may divide the password into two parts one is the role the judge if this situation happens at the trial while the other is the judges powers to limit the extent of expert disagreement before the trial.First of all, if there are conflicting experts opinions during the trial, the judge will need to direct the jury correctly. It is held by the Court of Appeal in kink28that the judge should not direct the jury in a way that it is a case of choosing between their opinion evidence. Rather, the jury should consider if there is a reasonable possibility that either the opinion of the prosecution or defence expert, when taken in conjunction with all the other evidence, is correct then the jury should proceed on that basis.For the second part, the introduction of Civil Justice Reform in Hong Kong has offered the courts more control over the expert evidence, including measures to reduce the expert disagreement before the trial. The most common way for the court to narrow expert disagreement is to direct an expert go outing and joint report29, where the experts of both sides will meet before the trial and indicate clearly in the joint report the reason for their disagreement with each other. The direction is supported by Justice Wood that experts moderate their opposing views in the expert meeting, or even reach agreement on the controversial aspects of their expertise.30It is also noticed that the experts have a duty to attend this pre-trial meeting and conclude with a proper joint report, or otherwi se, the defaulting expert would have breached paragraph 12 of the Code of Conduct for Expert Witness. Furthermore, the court has an option to order the appointment of a single joint expert under Order 38, rule 4A of RHC. Under this scheme, parties may jointly exact the single joint expert, or the court can select from a list prepared by the parties or any manner as the court may direct. Although the use of single joint expert may allow the fact-finder to have a simpler and less-biased picture over the technical matter, it is stressed in the Woolfs lowest report that the appointment of a single joint expert is mainly used to deal with the problem of excessive and inappropriate use of experts instead of bridging the differences of opinion between experts.31As a result, it is believed that the direction of pre-trial expert meeting and joint report will be more useful to narrow the conflicting opinion between experts rather than the appointment of a single joint expert.ConclusionWith increasing technological sophistication of issues in courts, it is no doubt that the expert witness is playing a more significant role in the judicial process. Unlike other witnesses, the expert witness has an overriding duty to the court to provide objective and unbiased opinion evidence. An absence of independence and objectivity on the part of the expert witness would be prejudicial to the court, and consequently lead to a devaluing role of the expert witness in the court proceedings. It is opined that the introduction of the code of conduct as well as the new rules under the Civil Justice Reform in Hong Kong have evolved new roles for the expert witness. By setting court expectations in respect of the expert evidence, the expert witness would strive to meet the high standards and adhere to their duties and responsibilities listed in the rules.Despite the effort of the expert witness, I believe the concerted efforts by all streams of the judicial system are also vital to restore not only the credibility of the role of expert witness, but also publics confidence in the administration of justice.BIBLIOGRAPHYBOOKSM. R. Damaska, Evidence Law adrift(predicate) (New Haven London Yale University Press, 1997)Mike Redmayne, Expert Evidence and Criminal Justice (OUP, Oxford 2001) prick Murphy, Murphy on Evidence (10th edn OUP, Oxford 2008)Simon NM Young, Hong Kong Evidence Casebook (Sweet maxwell Asia, Hong Kong 2004)ARTICLES REPORTSCharles Pugh Marcus Pilgerstorfer, Expert Evidence The Requirement of Independence (2008) Journal of Personal Injury Law 224.Chief Justices Working Party on Civil Justice Reform, Civil Justice Reform Interim Report and Consultative Paper (2001)Gary Edmond, After Objectivity Expert Evidence and Procedural Reform 25 Sydney Law analyze 131.Gary Edmond, Judicial Representations of Scientific Evidence (2000) 63 Modern Law Review 216.J.R Spencer, Court Experts and Expert Witnesses Have We a Lesson to Learn from the French? (1992) 45 on-li ne(prenominal) Legal Problems 213.Lord Woolf MR, Access to Justice Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, London 1996)Peter Alldridge, Forensic Science and Expert Evidence (1994) 21 Journal of Law and Society 136.Samuel Gross, Expert Evidence (1991) Wisconsin Law Review 1113.NEWSPAPERCliff Buddle, Judge calls expert witness mercenary SCMP (22 March 2002) EDT 7.ELECTRONIC RESOURCESJustice Sperling, Expert Evidence The Problem of Bias and Other Things (1999) accessed 13 March 2011.Justice Garry Downes AM, Expert Evidence The Value of Single or Court-Appointed Experts (2005) accessed 13 March 2011.Michael Wilkinson, Recent Developments Affecting Expert Evidence in Law Lectures for Practitioners (1991) accessed 13 March 2011.CASESFolkes v. Chadd 1782 99 ER 589Hong Kong Air Cargo Terminals Ltd. v. Commissioner of Rating and Valuation 2004 2 HKLRD 702In re Saxton 1962 1 WLR 968Lord Abinger v. Ashton 1874 22 WR 582National Justice Com pania Naviera SA v. Prudential Assurance Co. Ltd. 1993 2 Lloyds Rep. 68Nguyen Ho Others v. Director of Immigration 1990 Civ App No 135 of 1990Plait 1981 CrimLR 332Polivitte Ltd. V. Commercial Union Assurance 1987 1 Lloyds Rep. 379R v. Chung Chen Hsin 1996 1 HKCLR 120R v. Kai Tai Construction Engineering Company Ltd. 1996 2 HKCLR 26Tang Ping Choi Another v. Secretary for Transport 2004 2 HKLRD 284Whitehouse v. Jordan 1981 1 WLR 246