An expert witness, in England, Wales and the United States, is a person whose opinion is based on education, training, certification, skills or experience, accepted by a judge as an expert. The judge may consider the special (scientific, technical or otherwise) opinion of a witness to evidence or fact before a court of expertise, referred to as "expert opinion". Expert witnesses can also provide "expert evidence" in their area of ​​expertise. Their testimony can be denied by testimony from other experts or by evidence or other facts.
Video Expert witness
Histori
The earliest known use of expert witnesses in British law occurred in 1782, when a court heard of litigation related to the wells harbor of Wells in Norfolk received evidence from a prominent civil engineer, John Smeaton. This decision by the court to accept evidence of Smeaton is widely referred to as the root of modern rules on expert evidence. However, it was still an unusual feature in court that in 1957 at Old Bailey, Lord Justice Patrick Devlin could describe the case of the suspected serial killer Dr John Bodkin Adams thus: "This is the most bizarre situation, perhaps unique in this court. that the act of murder should be proved by expert evidence. "
Maps Expert witness
Expert witness role
Typically, experts rely on opinions on the severity of injury, the degree of sanity, the causes of failure in machines or other devices, loss of income and related benefits, maintenance costs, and the like. In the case of intellectual property an expert can be shown two grades of music, textbooks, or circuit boards and asked to ascertain their level of resemblance. In most cases, the expert's personal relationship with the defendant is considered and irrelevant.
The Tribunal itself, or judge, may in some systems require experts to technically evaluate certain facts or actions, to provide the court with full knowledge of the facts/actions assessed. Expertise has legal value from data acquisition. The results of these experts are then compared with the experts of the parties.
The expert has a great responsibility, and especially in criminal court, and a false oath by an expert is a crime that is severely punished in most countries. The use of expert witnesses is sometimes criticized in the United States because in civil trials, they are often used by both parties to advocate for different positions, and submitted to the jury to decide which expert witnesses should be trusted. Although experts are legally prohibited from expressing their views on the evidence presented until after they have been employed, sometimes a party may suspect in advance, for its reputation or previous cases, that the testimony will be profitable regardless of the basis of the data submitted; such experts are generally belittled as "leased weapons."
Expert task
In the case of high stakes, many experts, on various topics, are often kept by each side. Although it is still relatively rare, the court itself can also retain its own independent expert. In all cases, the fees paid to an expert may not depend on the outcome of the case.
Expert evidence is often the most important component of many civil and criminal cases today. Fingerprinting, blood analysis, DNA fingerprinting, and forensic firearms inspection are a common type of expert evidence that is heard in serious criminal cases. In civil cases, accident analysis work, forensic engineers, and forensic accountants are usually important, the last to assess damage and costs in long and complicated cases. Intellectual property and medical negligence cases are typical examples.
Electronic evidence also enters the courtroom as an important proof of forensics. Audio and video evidences must be authenticated by both parties in any litigation by a forensic expert who is also an expert witness who assisted the court in understanding the details of the electronic evidence.
Voice mail records and closed-circuit television systems produce electronic evidence that is often used in litigation, more than today than in the past. Videotapes of bank robberies and audio threats of life are presented in the courtroom by electronic expert witnesses.
England and Wales
In England and Wales, under the 1998 Civil Procedure Rules (CPR), expert witnesses must be independent and submit their expert reports to the courts. A witness may be jointly instructed by both parties if the parties agree to this, especially in cases where the responsibilities are relatively small.
Under CPR, expert witnesses may be ordered to make joint statements detailing points of agreement and disagreement to assist the courts or courts. Meetings are held separately from instructing lawyers, and often assist in solving a case, especially if experts review and change their opinion. When this happens, large trial costs can be saved when the disputing parties approve the settlement. In most systems, trials (or procedures) can be suspended to allow the experts to study cases and produce their results. More often, expert meetings occurred before the trial. Experts charge a professional fee paid by the party assigning the report (both parties for joint instruction) even though the report is addressed to the court. Cost does not have to depend on the outcome of this case. Expert witnesses may be summoned (issued with a witness call), although this is usually a formality to avoid court date clashes.
Scotland
In Scottish Law, Davie v Magistrates of Edinburgh (1953) authorizes that where a witness possesses certain knowledge or skills in the field being examined by the court, and has been summoned to court to decipher the area for the benefit of courts, witnesses who can provide proof of his opinion in the area.
Expert witness type
Test the expert
If the witness needs to give testimony in court, his privileges are no longer protected. The identity of expert witnesses and almost all documents used to prepare the testimony will be found. Usually an experienced lawyer will advise the expert not to take notes on the document as all records will be available to other parties.
An expert who testifies in federal court of the United States must meet the requirements of the Fed. R. Evid. 702. Generally, under Rule 702, an expert is someone with "scientific, technical, or other specialized knowledge" who can "help the fact trier," which is usually a jury. A witness who is offered as an expert must first establish his competence in the relevant field through the examination of his mandate. An opponent's lawyer is allowed to voir dire from witnesses to challenge the witness's qualifications. If qualified by the court, the expert may testify "in the opinion of the other or in" as long as: "(1) the testimony is based on sufficient facts or data, (2) testimony is the product of reliable principles and methods, and (3) the witness has applied the principle and method reliably to the facts of the case. "
Although experts can testify in any case where 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, job consultants, or care specialists. Senior doctors - British, Irish and Commonwealth Consultants, US GPs - are often used in both civil and criminal courts.
The Australian Federal Court has issued guidance to experts appearing in Australian courts. This includes expert written testimony formats as well as their conduct in court. Similar procedures apply in non-court forums, such as the Australian Commission on Human Rights and Equal Opportunities.
Educating witness
Educative witnesses teach fact-seekers (judges or, in court, judges) on the underlying scientific theories and theories of instrument implementation. This witness is an expert witness, called to gain an opinion that the theory is valid and the instruments involved are reliable. Witnesses must qualify as expert witnesses, who may require special academic or training qualifications.
Reporting witness
Called after teaching stand the witness stand. Usually lab technicians who do the tests personally. The witness will explain the results of the test and the results. When explaining the tests, it would be seen that the proper test procedure is used and the equipment is in good condition.
An uninformed expert
In the US, a party may hire experts to help them evaluate a particular case. For example, a car maker can hire an experienced mechanic to decide if his car is built to specifications. Such expert opinions shall be protected from discovery by the counterpart. In other words, if the expert finds evidence against their client, the opponent will not automatically gain access to it. This privilege is similar to the work-product doctrine (not to be confused with the attorney-client privilege).
Experts who do not testify may be present at the trial or trial to assist lawyers in asking questions from other expert witnesses. Unlike a testimonial expert, an expert who does not testify can be easily withdrawn from a case. It is also possible to change an expert who does not testify to an expert who testifies before the date of disclosure of an expert.
United States
In the United States, under Federal Proof of Procedure 702 (FRE), an expert witness shall be eligible on the subject of the testimony. In determining the qualification of an expert, FRE requires an expert to have special education, training, or practical experience in material relating to the case. Expert testimony should be based on facts in evidence, and should offer opinions on causality or correlation with evidence in drawing conclusions.
Experts in the US are usually paid hourly for their services in investigating facts, preparing reports, and if necessary, giving testimony during pre-trial discovery, or in trials. Hourly costs range from about $ 200 to $ 750 or more per hour, varying mainly by expert skill areas, and the qualifications and reputation of individual experts. In some areas, such as handwriting analysis, where experts compare signatures to determine the possibility of counterfeiting, and medical case reviews by doctors or nurses, where experts surpass hospitals and medical records to assess the likelihood of malpractice, experts often initially charge a fixed fee for their initial report. Like the hourly fee discussed earlier, the amount of such fixed costs varies greatly based on the expert's field, experience and reputation.
Expert professional fees, plus related fees, are generally paid by a party who holds an expert. In some cases, the winning party in the litigation is entitled to refund the amount paid to the losing party.
Scientific evidence
In law, scientific evidence is evidence derived from scientific knowledge or technique. Much of the forensic evidence, including genetic evidence, is scientific proof.
Frye test
The Frye test, derived from the case of Frye v. United States (1923), says that accepted scientific evidence must be the result of a "general acceptance" theory in the scientific community. This test produces a uniform decision regarding acceptance. In particular, the judges at Frye decided that:
- Just as the principle or scientific discovery crosses the line between the experimental stage and can be proved difficult to define. Somewhere in this dusk area the power of proof of that principle must be acknowledged, and while the courts will endeavor in acknowledging expert testimony deduced from a recognized principle or scientific discovery, the thing from which deduction is made must be well established. to gain general acceptance in the particular field in which it originated.
This test has been criticized as a misconception of the scientific process and is based on the assumption that a jury can not evaluate scientific testimony. The purpose of this test is to avoid evidence of overly questionable or controversial scientific theories to be used; it is used to exclude the result of a lie detector used by a defense in its original case.
Daubert test
The Daubert test appears from the case of the United States Supreme Court Daubert v. Merrell Dow Pharmaceuticals . Four things to show:
- That theory can be tested (tested?)
- That the theory has been reviewed by peers, (Peer review usually reduces the probability of error in theory)
- Reliability and error levels (100% reliability and zero error are not required, but tariffs should be considered by the test judge)
- The level of public acceptance by the scientific community
Federal Rules of Evidence using the Daubert Test. See FRE 702.
See also
References
Bibliography
- Bronstein, DA, Law for Expert Witness , CRC Press, 2nd Ed (1999).
- Dwyer, D, Judicial Review of Expert Evidence , Cambridge University Press (2008).
- Federal Judicial Center; National Research Council, eds. (2011). Manual References on Scientific Evidence (edition 3. ed.). Washington, DC: National Academies Press. ISBN 978-0-309-21421-6.
- Jasanoff, Sheila, Science at Bar: Law, Science, and Technology in America (Cambridge, Massachusetts: Harvard University Press, 1997).
- Reynolds, MP and King, PSD, Expert Witness and Evidence , Blackwell (1992).
- Smith, D, Become an Expert Witness Effectively , Thames Publishing (1993).
External links
- Expert Testimony in Federal Civil Session: Preliminary Analysis (pdf) (Federal Judicial Center, 2000)
- Project on Scientific Knowledge and Public Policy. Daubert - The Most Influential Supreme Court Judgment You Never Heard (pdf)
- Kenton K. Yee, Duel Expert and Incomplete Verification, 28.4 International Review on Law and Economics, 246-255 (2008)
- Cole, Simon A. "Where Rubber Meets the Way: Thinking of Expert Evidence as Expert Testimony" (Archive). Legal Journal of Villova . Faculty of Law of Villanova University. Volume 52, Issue 4, Article 4. p.Ã, 803-840.
Source of the article : Wikipedia
0 Comments