Opinion Evidence PDF

Opinion evidence  Defining Opinion evidence: Cross Definition Cross states that in the law of evidence opinion means ‘any inference from observed facts’.  General Rule The general rule at law is that witnesses must only give direct evidence which was ob...

Opinion evidence  Defining Opinion evidence: Cross Definition Cross states that in the law of evidence opinion means ‘any inference from observed facts’.  General Rule The general rule at law is that witnesses must only give direct evidence which was observed by them, with their five senses. The law requires that the witness merely state the facts and it is for the jury to draw their own conclusion from the statement. Opinion evidence as a class is considered to not infringe the rule against adducing hearsay evidence as the witness will be in court to testify and thus the veracity of their statement may be tested  EXCEPTIONS TO THE RULE An exception to this rule is expert opinion evidence. Essentially the law recognises that in some instances the judge or jury may not have the requisite specialty or ability to draw inferences on a particular matter that lies within a certain field, in which case the court will allow an ‘expert’ to provide opinion evidence i.e. draw an inference from it. It will then be up to the court to attach whatever weight or value to such evidence. The court will in all instances determine the conclusion of the case, thus witnesses including experts must not provide a conclusion on the ultimate issue. They need only state their opinion on the facts at hand.  REASONS FOR EXCLUDING OPINION EVIDENCE 1. It may lead to pre-judgement of the fact in issue, since the witnesses by giving their inference as opposed to statement of the facts will be usurping the functions of the judge. 2. This evidence is considered to be irrelevant i.e. a persons opinion on an aspect. 3. Opinion evidence may infringe other exclusionary rules e.g. the rule against adducing bad character evidence.  NON EXPERT OPINION EVIDENCE A non expert witness may not give opinion evidence, the rule is that he must only give evidence of facts directly perceived. However in some instances it may be hard to distinguish between facts and opinion.  UGLOW WHEN NON EXPERT OPINION EVIDENCE IS ALLOWED Uglow states that ‘non-expert witnesses are allowed to express their opinion where: 1. It would be impossible to separate fact from inference, 2. Where the opinion is necessary for the coherence and comprehensibility of the testimony and 3. When the opinion involves an everyday matter calling for no special expertise.’ Thus opinion evidence is permitted where it is impossible to separate the inferences from the perceived facts on which the inferences are based.  DISTINGUISING BETWEEN FACT AND INFERENCE In some instances it may not always be easy to distinguish between a fact and an opinion. For instance some aspects may be borderline fact and opinion. Evidence such as: perception as to speed, handwriting, identity of persons or things, temperature etc. In these cases the court allows the evidence from such witnesses as it is unable to distinguish what amounts to fact or opinion.  Cases Non expert witnesses cannot give evidence as to the unfitness of a person to drive but may give evidence of the fact that the accused was drunk in their opinion as long as they do not state that they were so drunk that it made it unfit for them to drive. In DAVIS 3 ALL ER 97, it was stated that a witness (non expert) could testify as to whether in his opinion a person had taken alcohol, in this instance he must explain the facts on which he is relying on, e.g. based on his smell. However such a witness could not testify as to whether the person was unfit to drive. BLAKE v THE PEOPLE (1973) ZR 157 (HC) In this case the appellant was convicted by a subordinate court in Livingstone of driving a motor vehicle whilst under the influence of intoxicating liquor or drug and of failing to submit to a medical examination. In this case the magistrate relied on the evidence of two police officers that had observed the driving performance of the appellant. They had seen the appellant fail to stop at a stop sign which, though not evidence of inability to drive properly was consistent with such a state and drew their attention to him. They stated that after crossing the junction the appellant drove the car in such a manner that it swerved from one side of the road to the other.. they observed that his face was sweating, his eyes appeared dull, he seemed dozy and he staggered when asked to walk to the police vehicle. The above was stated to be admissible as evidence of factual observations. The court stated that this did not infringe the rule that lay people were not permitted to give opinion evidence as the effect of liquor on someone’s ability to drive. They were simply stating that he appeared to be intoxicated at that point. The court held that evidence given by hospital medical officer that stated that by looking at the accused he appeared drunk and was shouting and arguing with the police. This was not offered as expert opinion but was just as acceptable as the opinion of the Assistant Inspector that the appellant was drunk.  Non expert opinion evidence: drunk and speed Mwelwa and the people The appellant was convicted in the high court of causing death by dangerous driving. On the 1st of July 1973 the appellant was a driver of a Mercedes truck and was carrying 7 passengers of whom some were in the cab with him and others in the back. During the journey the appellant stopped at a bar and according to the witnesses stated that he was going to drink some beer. Thereafter the journey continued at a bend the truck left the road and after travelling some distance it overturned. One of the passengers died as a result of the injuries received in the accident. The trial judge found that the applicant was driving too fast to control his vehicle and that he had taken more beers than he should have done and that he wasn’t as sober as he should have been.  Mwelwa v the people It was held that In this case it was argued that as witnesses that gave evidence as that the accused was drunk amounted to opinion evidence as they did not accompany him to the bar. Secondly that the evidence as to speed was equally opinion evidence being inadmissible at law. The court reiterated the common law position that non experts are not permitted to give opinion evidence as this is the premise of the court. however in order for the court to arrive at its decision, non experts may give factual evidence on which the court can draw inferences. The court then cited Davis v the people which illustrates that non experts can give evidence as to opinion on consumption of alcohol that must be based on factual circumstances such as smell etc but cannot give evidence on the impact of that alcohol on fitness to drive. It cannot be said because they are a driver they are an expert that is the premise of the court. In this case the crime was causing death by dangerous driving. The court held that the witnesses gave factual evidence as to their perception of the accused being that he was drunk, they said he smelt of alcohol. He staggered when he walked, and he was talking loudly. This helped the court come to the conclusion that he was not sober as he should have been and from this it drew their opinion. The sketch plan illustrating speeding by the police was equally admissible.  Expert opinion evidence Expert opinion evidence When dealing with the question of expert testimony, two interrelated separate questions should be considered being 1. whether the issue in question is such that the trier of fact may appropriately receive assistance in the form of expert evidence 2. Scope of expert evidence: is the field recognised and secondly whether the witness at hand is an individual qualified to render that assistance  1.Whether the issue in question is such that the trier of fact may appropriately receive assistance in the form of expert evidence Unnecessary Expertise: the courts will exclude evidence of opinion on matters not calling for expertise, because like evidence of non experts on matters calling for expertise it does not help the court. Where the matter deals with that of human experience and nature there is no need for expert opinion on the matter. Receiving evidence dressed in scientific jargon will merely complicate the matter and usurp the functions of the judge who might think that they are in a better position to make the decision when they are in no better position. Turner Lawton L.J: ‘the opinion of scientific men upon proven facts may be given by men of science within their own science. 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. In such a case if it is given dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality, more helpful than that of the jurors themselves; but there is a danger that they may think it does.’  Expert opinion evidence is not admissible where the jury or trier of fact is competent to discharge that function i.e. does not fall outside their skill For instance on a question falling on the subject of a reasonable man, i.e. did the defendant intend this, did they foresee this, ought they to have known etc. The trier of fact represent society i.e. the normal person thus there is no need for psychologist or psychiatric opinion on such aspects. It is only where they are dealing with an abnormal or mentally challenged persons that an expert may be called for. Haynes v Doman: in this case the court held that there was no need for expert testimony when determining the reasonableness of a contract as this depends on its true construction and legal effect an aspect within the jury’s competence.  THE TURNER RULE In the case of R v Turner: An accused was charged with the murder of his girlfriend, he tried to use as the basis of his action provocation, that the girlfriend had admitted to having affairs whilst he was in prison, and due to that he acted spontaneously in rage. The court held that the expert evidence seeking to establish that he was sane but likely to have killed her in an explosive release of blind rage. The court held that this lay within the knowledge of the jury in which case there was no need for expert evidence. The court in this case formulated a rule ‘the turner rule’ stating: 1. Expert evidence is not admissible when it concerns an issue within the knowledge and experience of the jury or 2. When it concerns an issue of human nature and behaviour within the bounds of normality.  Application of the Turner rule The creditworthiness of a witness has also been stated to fall within the competence of the Jury and thus not needing any expert witnesses, however where this falls outside the competence of the jury expert testimony can be adduced such as where the witness suffers from false memory syndrome G and H or where a witness is incapable of telling the truth Mackanney (note that in both these cases the witnesses fell under the scope of ‘normal’) EXCEPTIONS TO THE TURNER RULE See Lowery ALL ER 3 662: expert evidence establishing the character of both accused (charged with a sadistic murder of a young girl, each laid the blame on the other) to show that one accused that had an aggressive character was more likely to have committed the crime than the one that was immature and emotionally shallow. (Note that it was admitted not only because the gates to adducing evidence of bad character had been opened but because the court thought it relevant).  SCOPE OF EXPERT EVIDENCE The court must consider: 1. Is the field a proper subject for expert testimony? 2. Whether the expert is qualified in the subject? Is the field a proper subject for expert testimony? Looking at the first question, a number of fields have been identified as appropriate to receive expert evidence including: 1. Medical evidence, 2. Ballistic evidence 3. Handwriting 4. Scientific evidence, 5. architectural and engineering. 6. Bullets and blood may all be the subject of expert analysis.  Is the field recognised as proper for expert evidence To answer the question the courts test is: ‘The common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialised understanding of the subject involved in the dispute.’  Fields recognised as expert This illustrated that accepted expert evidence is relative in that with time some fields may not require expert evidence such as now with advanced computer literacy whilst in other fields, the court with time may come to accept as falling under Expert evidence. In Robb the court stated: ‘What characterises a field as one in which expertise may exist, and what qualifies, or disentitles, a witness to give evidence of his opinion as an expert? The old established, academically based sciences such as medicine, geology or metallurgy and the established professions such as architecture, quantity surveying or engineering, present no problem. The field will be regarded as one in which expertise may exist and any properly qualified member will be accepted without question as expert. Expert evidence is not, however limited to these core areas. Expert evidence of finger prints, handwriting and accident reconstruction is regularly given. Opinions may be given of the market value of land, ships, pictures or rights. Expert opinions may be given of the quality of commodities, or on the literary, artistic, scientific or other merit of works alleged to be obscene….Some of the fields are far removed from anything which could be called a formal scientific discipline yet while receiving this evidence the courts would not accept the evidence of an astrologer, a soothsayer, a witch-doctor or an amateur psychologist and might hesitate to receive evidence of attributed authorship based on stylometric analysis.’  2. IS THE WITNESS AN EXPERT? Once it has been established that the filed of expertise is recognised by the court, the next question would be whether the witness is an expert in that field. Their credentials may consist of practical experience or professional qualification. Whether a person is an expert is a question of fact for the judge where they have credentials this is easy to establish and the question left will be related to the weight of their evidence.  Defining Expert: Cases SILVERLOCK: The case dealt with a charge of obtaining a check by false pretence. It became necessary to prove that certain documents were in the defendant’s handwriting; and to do this the solicitor for the prosecution was called as an expert witness. He stated that (apart from his professional work), he had since 18884 (case was in 1894) given considerable study and attention to handwriting and had on occasion compared evidence of handwriting. The court questioned whether it was necessary for the person who gives such evidence to be a professional expert or a person whose ordinary business leads him to have special experience in questions of handwriting or whether the evidence of any person who has or states that he has for some years studied handwriting would be admissible for that purpose. The court held that skill can be acquired through profession or experience. The question is whether the man is skilled? It matters not how such skill was acquired. It may be acquired through profession or experience. After establishing that he is skilled the rest is a matter for the jury i.e. how much weight is to be attached to the evidence given. Chileya v the people The applicant was charged with theft of a motor Toyota vehicle. He sought leave to appeal against conviction and argued that evidence concerning the identity of the stolen vehicle was inadmissible. It was held that there was evidence from a dealer in Toyota vehicles to the effect that the chassis of the vehicle purchased by the applicant from Hussa Co was a different model from that on the car claimed by the complainants. Counsel has argued that evidence of witness who referred to make of the chassis and body was not that of expert witness because witness referred to himself as a general manager of a company dealing in motor cars and having indicated that his job concerned accountancy. We note that from the evidence of this witness however, he agreed that he had been dealing Toyota vehicles for a number of years and was familiar with the different makes in the circumstances, this qualified the witness to give the relevant evidence and the positive evidence that the particular chassis was different and was properly accepted by the trial magistrate.  191-General rule all evidence to be taken in presence of accused Exceptions: 191 A but accused may still apply for their presence Folkes v Chadd: in this case it was held that an engineer’s opinion evidence was admissible on the issue of whether an embankment had caused the silting up of a harbour. ‘That opinion is deduced from facts which are not disputed, the situation of banks, the course of tides and of winds and the shifting of sands. His opinion deduced from all these facts is that, mathematically speaking the bank may contribute to the mischief but not sensibly. Mr S understands the construction of harbours, the causes for destruction and how remedied. In matters of science no other witness can be called. An expert can testify based on their own findings, the findings on others to the scientific or other principles relevant to the case and draw relevant inferences from such findings. They however must give opinions based on their field of expertise and not on another.  Rules relating to expert evidence As established experts may give an opinion based on facts; they must explain the facts on which their opinion is based however they may not give an opinion on the ultimate issue: Rules relating to expert evidence The witness must lay down, or bring forward all materials on which his opinion is based, for the court to draw its own conclusions, He must actually be in court to give his testimony secondly the expert must not give an affirmative remark on the determination of the final matter i.e. in a case of murder stating that the accused murdered the victim  Handwriting Chuba v the people: the expert failed to lay down all the materials relevant to establishing that the handwriting on the false check was similar to that of the accused, on a charge for forgery of a cheque. Handwriting evidence unlike that of thumb prints is not conclusive thus evidence merely needs to establish the degree of similarities or distinctions. Medical evidence Lupupa v the people SCZ 1977: the court elaborated that whenever the evidence in question is more than merely formal, the expert witness must be in court to testify on his report. The court stated that it is highly desirable where any case where the contents of the report go to the root of the charge for the maker of the report actually to give verbal evidence so that he can be questioned on it and explain it. The court stated that although s191A makes provision for the report to be present without the expert this was only intended for purely formal aspects such as to establish a fact of death in order to complete a chain of events. The section makes provision to call for the expert but the expert it was stated must be there where the evidence in question is more than purely formal. Ballistics Evidence Chansa v The people: the expert failed to provide any evidence or material on which he based his opinion. This made the case fatal. Ballistic evidence that the round found at crime scene was the one fired from a gun with which the appellant was connected. This must be done whenever available Ultimate issue: HG v R it was held that although a psychiatrist could express an opinion as to whether a child’s behaviour indicated that it had been sexually abused, it was inappropriate for him to express an opinion that the abuse had been perpetrated by a particular person at a particular time  testimony: Weight accorded to Expert Testimony The judge must decide what weight is to be given to the evidence of an expert witness, making their own independent judgment from the facts and principles proved in evidence. This is more so where there is conflicting expert evidence but the same will be the position where there is no conflict, in each case the court must decide what weight to give to evidence. (a) Juries should not be directed to accept inevitably the evidence of an expert witness, even where that evidence is not contradicted. (b) Juries should not be invited to disregard the evidence of an expert witness in favour of their own unaided lay opinion. In a notorious obscenity trial, the accused published a School Kids Issue of their magazine, Oz and were charged with a conspiracy to corrupt public morals. The judge was criticised by the appeal court when he invited the jury to disregard expert testimony, referring in his summing up to so called experts. Lupupa v The people: If nothing contradicts the expert evidence it will stand however in light of other contradictions including none expert ones the conviction may be quashed.  AGE? Can a judge convict without expert opinion on someone’s age? What evidence is needed on this: Read Muna Ndhulo Kapwepwe v R (Northern Rhodesia, 1952) p240 and PHIRI (MACHEKA) v THE PEOPLE (1973) Z.R. 145 (C.A.): held were the age of the witness goes to the root of the case, evidence of a persons age must be provided otherwise the court may look at the witness to determine their age.  Questions 1. What criteria should a court use in determining whether an individual should be classed as an expert witness 2. Liswaniso was convicted of murder. While he was in custody he gave the police an alibi to the effect that he had been with one Jonas Tembo at the crucial time. Tembo was questioned by the police and denied this. During the questioning of Tembo, Liswaniso had winked at him. At the trial Tembo testified about the wink and said that he interpreted it as a signal to him to supply the accused with an alibi. On appeal it is argued that Tembo’s evidence infringed the opinion rule. Discuss