An expert witness is a witness, who by virtue of education, training, skill, or experience, is believed to have knowledge in a particular subject beyond that of the average person, sufficient that others may officially (and legally) rely upon the witness's specialized (scientific, technical or other) opinion about an evidence or fact issue within the scope of their expertise, referred to as the expert opinion, as an assistance to the fact-finder. The Law of evidence governs the use of Testimony (eg oral or written statements such as an Affidavit) and exhibits (e Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive "Testify" redirects here For other uses see Testify (disambiguation and Testimony (disambiguation. Documentary evidence is any evidence introduced at a trial in the form of Documents. Physical evidence is any evidence introduced in a trialin the form of a physical object intended to prove a fact in issue based on its demonstrable physical characteristics Digital evidence or electronic evidence is any probative information stored or transmitted in Digital form that a party to a Court case may use at Exculpatory evidence is the evidence favorable to the Defendant in a criminal trial, which clears or tends to clear the defendant of Guilt. This article is about the legal concept For scientific evidence in pure science see Scientific evidence. Demonstrative evidence is evidence in the form of a Representation of an object Real evidence is a type of Physical evidence and consists of objects that were involved in a case or actually played a part in the incident or transaction in question Eyewitness identification evidence is the leading cause of Wrongful conviction in the United States Lies, on their own are not sufficient evidence of a crime However Lies may indicate that the defendant knows he is guilty and the prosecution may rely on the fact that the Relevance, in the Common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case or to have Probative Burden of proof (onus probandi is the obligation to prove Allegations which are presented in a Legal action. In Law, a foundation is sufficient preliminary evidence of the authenticity and relevance for the admission of material evidence in A subsequent remedial measure is a term used in the Law of evidence in the United States to describe an improvement or repair taken following an injury Character evidence is a term used in the Law of evidence to describe any testimony or document submitted for the purpose of proving that a person acted in a particular Habit evidence is a term used in the Law of evidence in the United States to describe any evidence submitted for the purpose of proving that a person In the law of Evidence, similar fact evidence (or the similar fact principle) establishes the conditions under which factual evidence of past misconduct of accused Authentication, in the Law of evidence, is the process by which Documentary evidence and other Physical evidence is proven to be genuine and Chain of custody refers to the chronological documentation and/or Paper trail, showing the seizure custody control transfer analysis and disposition of Evidence Judicial Notice is a rule in the Law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it The best evidence rule is a Common law rule of evidence which can be traced back at least as far as the 18th century A self-authenticating document, under the Law of evidence in the United States, is any Document that can be admitted into evidence at a trial An ancient document, in the Law of evidence, refers to both a means of authentication for a piece of Documentary evidence, and an exception to the A witness is someone who has firsthand knowledge about a Crime or dramatic event through their Senses (e In American law competence concerns the mental capacity of an individual to participate in legal proceedings Under Common law, privilege is a term describing a number of rules excluding evidence that would be adverse to a fundamental principle or relationship if it were disclosed The Direct Examination is a crucial part of the case Direct examination (also called examination in chief is the questioning of a witness by the party who called him or her in a See Structure of policy debate for cross-examination in Policy debate. Witness impeachment, in the Law of evidence, is the process of calling into question the credibility of an individual who is testifying in a trial. A recorded recollection, in the Law of evidence, is an exception to the Hearsay rule which allows a witness to testify to the accuracy of a recording or A dead man statute is a statute designed to prevent Perjury in a Civil case by prohibiting a witness who is an interested party from testifying about communications History of the rule The rules of hearsay began to form properly in the late seventeenth century and had become fully established by the early nineteenth century Hearsay is the legal term that describes statements made outside of court or other judicial proceedings In the law of criminal evidence a confession means a statement by a suspect in crime which is adverse to that person The business records exception to the US hearsay rule is based on Rule 803(6 of the Federal Rules of Evidence (FRE An excited utterance, in the Law of evidence, is a statement made by a person in response to a startling or shocking event or condition In the Law of evidence, the dying declaration is Testimony that would normally be barred as Hearsay but may nonetheless be admitted as evidence Background The party admission, in the Law of evidence, is a type of statement that appears to be hearsay (an out of court statement but is An ancient document, in the Law of evidence, refers to both a means of authentication for a piece of Documentary evidence, and an exception to the Declarations against interest are an exception to the rule on hearsay in which a person's statement may be used where generally the content of the statement is so prejudicial A present sense impression, in the Law of evidence, is a statement made by a person (the Declarant) that conveys his or her sense of the state of an This article is for the legal term 'Res Gestae' For the article on the record of the accomplishments of the first Roman emperor Augustus see the article for Res Gestae Divi A learned treatise, in the Law of evidence, is a text that is sufficiently authoritiative in its field to be admissible as evidence in a Court in support In the law of evidence, an implied assertion is a statement or conduct that infers some fact A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law Tort law is the name given to a body of law that creates and provides remedies for civil wrongs that do not arise out of Contractual duties Property law is the area of Law that governs the various forms of Ownership in Real property (land as distinct from personal or movable possessions In Common law, a will or testament is a document by which a person (the Testator) regulates the rights of others over his or her Property The law of trusts and estates is generally considered the body of Law which governs the management of personal affairs and the Disposition of Property of The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential A witness is someone who has firsthand knowledge about a Crime or dramatic event through their Senses (e Education encompasses both the Teaching and Learning of Knowledge, proper conduct, and technical competency The term training refers to the acquisition of knowledge skills and competencies as a result of the teaching of vocational or practical skills and knowledge A skill is the learned capacity or talent to carry out pre-determined results often with the minimum outlay of time energy or both. Experience as a general concept comprises Knowledge of or skill in or Observation of some thing or some event gained through involvement in or Knowledge is defined ( Oxford English Dictionary) variously as (i expertise and skills acquired by a person through experience or education the theoretical or practical understanding This article is about the legal concept For scientific evidence in pure science see Scientific evidence. Evidence in its broadest sense includes anything that is used to determine or demonstrate the Truth of an assertion Generally a fact is defined as something that is true something that actually exists or something that can be verified according to an established standard of evaluation A trier of fact (or finder of fact) is a person who determines facts in a legal proceeding [1] Expert witnesses may also deliver expert evidence about facts from the domain of their expertise. [2] At times, their testimony may be rebutted with a learned treatise, sometimes to the detriment of their reputations. A learned treatise, in the Law of evidence, is a text that is sufficiently authoritiative in its field to be admissible as evidence in a Court in support
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Experts in the real world
Typically, experts are relied on for opinions on severity of injury, degree of insanity, cause of failure in a machine or other device, loss of earnings, care costs and the like. An "expert" ( is someone widely recognized as a reliable source of technique or Skill whose faculty for judging or deciding rightly justly Injury or bodily injury is Damage or Harm caused to the Structure or function of the Body caused by an outside agent or Traditionally insanity or madness is the behaviour whereby a person flouts societal norms and may become a danger to himself and others
The tribunal itself, or the judge, can in some systems call upon experts to technically evaluate a certain fact or action, in order to provide the court with a complete knowledge on the fact/action it is judging. Tribunal is a generic term for any body acting judicially whether or not it is called a tribunal in its title A judge, or justice, is an Official who presides over a Court of law Generally a fact is defined as something that is true something that actually exists or something that can be verified according to an established standard of evaluation Action theory is an area in Philosophy concerned with theories about the processes causing intentional (wilful human bodily movements of more or less complex kind The expertise has the legal value of an acquisition of data. The results of these experts are then compared to those by the experts of the parties.
The expert has heavy responsibility, especially in penal trials, and perjury by an expert is a severely punished crime in most countries. In the most general sense penal is the body of laws that are enforced by the State in its own name and impose penalties for their violation as opposed to civil law that seeks Perjury, also known as forswearing, is the act of lying or making verifiably false statements on a material matter under Oath or Affirmation in a In the sociological field, crime is the breach of a rule or Law for which some governing authority or force may ultimately prescribe a Punishment The use of expert witnesses is sometimes criticized in the United States because in civil trials, they are often used by both sides to advocate differing positions, and it is left up to a jury of laymen to decide which expert witness to believe. The United States of America —commonly referred to as the Civil law, as opposed to Criminal law, refers to that branch of Law dealing with disputes between Individuals and/or Organizations, in which A jury a sworn body of persons convened to render a rational, impartial Verdict (a finding of fact on a question officially submitted to them The term " layman " originated from the use of the term Laity, but over the centuries changed definition to mean a person who is a non-expert in a given field of Sometimes one side has utilized an expert witness to provide fraudulent or junk science testimony in order to convince a jury. In the broadest sense a fraud is a Deception made for personal gain or to damage another individual Junk science is a term used in US political and legal disputes that brands an advocate's claims about scientific Data, Research, "Testify" redirects here For other uses see Testify (disambiguation and Testimony (disambiguation.
Duties of experts
In England and Wales, under the Civil Procedure Rules 1998, an expert witness is required to be independent and address his or her report to the Court. England is a Country which is part of the United Kingdom. Its inhabitants account for more than 83% of the total UK population whilst its mainland The Civil Procedure Rules 1998 ( CPR) are the rules of Civil procedure used by the Court of Appeal, High Court of Justice, and County Courts A witness may be jointly instructed by both sides if the parties agree to this, especially in cases where the liability is relatively small.
Under the CPR, expert witnesses are usually instructed to produce a joint statement detailing points of agreement and disagreement to assist the court or tribunal. The meeting is held quite independently of instructing lawyers, and often assists in resolution of a case, especially if the experts review and modify their opinions. When this happens, substantial trial costs can be saved when the parties to a dispute agree to a settlement. In most systems, the trial (or the procedure) can be suspended in order to allow the experts to study the case and produce their results. More frequently, meetings of experts occur before trial.
History
The earliest known use of an expert witness in English law came in 1782, when a court that was hearing litigation relating to the silting-up of Wells harbour in Norfolk accepted evidence from a leading civil engineer, John Smeaton. In law a lawsuit is a civil action brought before a Court in which the party commencing the action the Plaintiff, seeks a legal or equitable remedy Wells-next-the-Sea, known locally simply as Wells, is a Town, Civil parish and Seaport situated on the North Norfolk coast in Norfolk (ˈnɔrfək is a low-lying county in East Anglia, England, United Kingdom. A civil engineer is a person who practices Civil engineering, one of the many engineering professions This article is about the 18th century civil engineer For the baggage handler involved in the 2007 Glasgow International Airport attack, see John Smeaton (baggage This decision by the court to accept Smeaton's evidence is widely cited as the root of modern rules on expert evidence. However, it was still such an unusual feature in court that in 1957 in the Old Bailey, Lord Justice Patrick Devlin could describe the case of suspected serial killer Dr John Bodkin Adams thus: "It is a most curious situation, perhaps unique in these courts, that the act of murder has to be proved by expert evidence. The Central Criminal Court in England, commonly known as the Old Bailey, is a court A Lord Justice of Appeal is an ordinary judge of the Court of Appeal of England and Wales, the court that hears appeals from the High Court of Justice, and represents Patrick Arthur Devlin Baron Devlin PC ( 25 November 1905 - 9 August 1992) was a British Lawyer, Judge A serial killer is a person who Murders usually three or more people with a "cooling off" period between each murder and whose motivation for killing is largely based John Bodkin Adams ( January 21, 1899 &ndash July 4, 1983) was an Irish-born British General practitioner, convicted "[3]
On the other hand, expert evidence is often the most important component of many civil and criminal cases today. Fingerprint examination, blood analysis and DNA fingerprinting are common kinds of expert evidence heard in serious criminal cases. A fingerprint is an impression of the friction ridges of all or any part of the finger A blood test is a laboratory analysis performed on a Blood sample that is usually extracted from a Vein in the arm using a needle, or via In civil cases, the work of accident analysis, forensic engineers, and forensic accountants is usually important, the latter to assess damages and costs in long and complex cases. Accident Analysis is carried out in order to determine the cause or causes of an accident or series of accidents so as prevent further incidents of a similar kind Forensic Engineering is the investigation of materials, products, Structures or components that fail or do not operate/function as An accountant is a practitioner of Accountancy, which is the measurement disclosure or provision of assurance about financial information that helps managers investors In Law, damages refers to the money paid or awarded to a Claimant (England Pursuer (Scotland or Plaintiff (US following a successful Costs redirects here For costs related to economics and accounting see Cost. Intellectual property and medical negligence cases are typical examples
Non-testifying experts
In the U. Intellectual property ( IP) is a legal field that refers to creations of the mind such as musical literary and artistic works inventions and symbols names Medical malpractice is professional negligence by act or omission by a Health care provider in which care provided deviates from accepted standards of practice S. , a party can hire experts to help him/her evaluate the case. For example, a car maker may hire an experienced mechanic to decide if its cars were built to specification. This kind of expert opinion will be protected from discovery. In Law, discovery is the pre-trial phase in a Lawsuit in which each party through the law of Civil procedure can request documents and other evidence If the expert finds something that is against its client, the opposite party will not know it. This privilege is similar to the work product protected by the attorney/client privilege. In American Civil procedure, the work-product doctrine protects materials prepared in anticipation of Litigation from discovery by opposing counsel Attorney-client privilege is a legal concept that protects communications between a client and his or her Attorney and keeps those communications confidential
Testifying experts
If the witness needs to testify in court, the privilege is no longer protected. The expert witness's identity and nearly all documents used to prepare the testimony will become discoverable. Usually an experienced lawyer will advise the expert not to take notes on documents because all of the notes will be available to the other party.
Although experts can testify in any case in which their expertise is relevant, criminal cases are more likely to use forensic scientists or forensic psychologists, whereas civil cases, such as personal injury, may use forensic engineers, forensic accountants, employment consultants or care experts. Forensic psychology is the intersection between Psychology and the Legal system. Forensic Engineering is the investigation of materials, products, Structures or components that fail or do not operate/function as An accountant is a practitioner of Accountancy, which is the measurement disclosure or provision of assurance about financial information that helps managers investors An employment consultant is an Expert witness who advises courts and tribunals on employment related issues such as earnings labour market analysis residual earning capacity Health care is the prevention treatment and management of illness and the preservation of mental health through the services offered by the medical, Nursing Senior physicians, usually consultants or their equivalents, are frequently used in both the civil and criminal courts. A physician, medical practitioner or medical doctor who practices Medicine, and is concerned with maintaining or restoring human Health In the United Kingdom, Republic of Ireland, and parts of the Commonwealth, consultant is the title of a senior doctor who has completed
The Federal Court of Australia has issued guidelines for experts appearing in Australia courts[4]. This covers the format of the expert's written testimony as well as their behaviour in court. Similar procedures apply in non-court forums, such as the Australian Human Rights and Equal Opportunity Commission[5].
See also
- Ambush defence
- Daubert Standard and Daubert v. Merrell Dow Pharmaceuticals
- Death of an Expert Witness - a novel
- Employment consultant
- Expert shopping
- Expertpages
- Vehicular accident reconstruction
- Forensic science
- Forensic engineering
- Gibson's law
- In limine
- Kumho Tire Co. v. Carmichael
- Questioned document examination
- Ultimate issue
- Canada's equivalent caselaw R. v. Mohan, 1994 CanLII 8 (ON C.A.)
References
- ^ See, e. An ambush defence is one in which defence evidence - notably from expert witnesses - has not been adduced in advance to the prosecuting authorities leading to their inability The Daubert standard is a legal Precedent set in 1993 by the Supreme Court of the United States regarding the admissibility of Expert witnesses Daubert v Merrell Dow Pharmaceuticals,, applied the rules governing expert testimony established by the Federal Rules of Evidence to the admission of scientific Death of an Expert Witness is an Adam Dalgliesh novel by P D James, published in 1977. An employment consultant is an Expert witness who advises courts and tribunals on employment related issues such as earnings labour market analysis residual earning capacity Expert shopping is the practice of finding an expert on a given subject whose professional opinion is skewed toward the answer that the searching party already prefers Expertpages is a free directory Website of US Expert witnesses founded in 1995 Vehicular accident reconstruction s are often conducted by specialized units in law enforcement agencies, to answer questions about automobile accidents, such as who Forensic Engineering is the investigation of materials, products, Structures or components that fail or do not operate/function as In Public relations,and in the Practice of law, Gibson's law holds that "For every PhD there is an equal and opposite PhD Motion in limine ( Latin: "at the Threshold " is a motion, made before the start of a Trial requesting that the Judge Kumho Tire Co v Carmichael,, is a United States Supreme Court case that applied the ''Daubert'' standard to Expert testimony from non-scientists Questioned document examination (QDE is the forensic discipline pertaining to documents that are (or may be in dispute in a court of law An ultimate issue in Criminal law is a legal issue at stake in the Prosecution of a Crime for which an Expert witness is providing g. , Federal Rule of Evidence 702 (As amended Apr. 17, 2000, eff. Dec. 1, 2000)
- ^ Black's Law Dictionary, articles "Evidence", "Expert", "Witness"
- ^ Cullen, Pamela V. Black's Law Dictionary is the most widely-used Law dictionary for the Law of the United States. , "A Stranger in Blood: The Case Files on Dr John Bodkin Adams", London, Elliott & Thompson, 2006, ISBN 1-904027-19-9
- ^ Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia, Practice Direction, (Federal Court of Australia, 2007)
- ^ The accidental expert witness, Tom Worthington, Information Age (IDG, 2005)
Bibliography
- Bronstein, DA, Law for the Expert Witness, CRC Press,2nd Ed (1999).
- Reynolds, MP and King, PSD, The Expert Witness and his Evidence, Blackwell (1992).
- Smith, D, Being an Effective Expert Witness, Thames Publishing (1993).
External links
- Expert Testimony in Federal Civil Trials: A Preliminary Analysis (pdf) (Federal Judicial Center, 2000)
- Legal Articles about Experts and Expert Witnesses
- The Use of Expert Witnesses in Cases Involving Sexual Assault (pdf) (Violence Against Women Online Resources, 2005)
- Project on Scientific Knowledge and Public Policy. The Project on Scientific Knowledge and Public Policy (SKAPP, based at the George Washington University in Washington DC, examines the nature of science and the Daubert-The Most Influential Supreme Court Ruling You've Never Heard Of (pdf)
- Ronald L. Melnick. A Daubert Motion: A Legal Strategy to Exclude Essential Scientific Evidence in Toxic Tort Litigation (pdf) American Journal of Public Health, June 2005.
- Expert Witness Institute
- Michael Blanchard & Gabriel Chin, Identifying the Enemy in the War on Drugs: A Critique of the Developing Rule Permitting Visual Identification of Indescript White Powders, 47 American University Law Review 557 (1998)
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