When is an expert, not an expert?
Posted on 25th March 2022 at 10:15
Expert status in criminal courts has always been an ambiguous topic and so many investigators get het up on status or title.
An expert can be anyone with knowledge or experience of a particular field or discipline beyond that to be expected of a layman. An expert witness is an expert who makes this knowledge and experience available to a court to help it understand the issues of a case and thereby reach a sound and just decision.
The overarching decision as to whether a person is an expert or not sits with the court and therefore individuals should not get bogged down with titles. Whilst it is appropriate that some call themselves expert witnesses, based on experience, evidence given in court and training, this does not give status over and above anyone else presenting the same evidence.
What is most important is the role of an ‘expert’. The primary duty of an expert witness is to the court, to be truthful as to fact, thorough in technical reasoning, honest as to opinion and complete in his/her coverage of relevant matters. Expert evidence should be, and should be seen to be, independent, objective and unbiased.
We often come across reports written by the prosecution, whether that be an analyst, or a fully trained expert who is a police officer or police staff. This then begs the question, can this person be deemed an expert? They are solely employed by the police, and therefore may not fit the criteria of independent.
If I am being completely honest here, as I have previously stated, it matters not. If the evidence has been presented fairly, accurately and transparently, then whether this person is an expert or not only really comes into play if they were to offer an opinion on the evidence. The fundamental characteristic of expert evidence is that it is opinion evidence. Generally speaking, lay witnesses may give only one form of evidence, namely evidence of fact.
For this reason, we are seeing Police Forces routinely outsourcing work to independent companies who can offer that independent review of the evidence, and who can offer that opinion to assist the court.
What concerns me regarding this is the way in which some companies are wording their reports. For example, recently I was faced with a prosecution report, presented by an external company, which stated: -
“I have been given a list of points to prove as follows….”
Hang on one minute! You have been asked to prove points raised by the prosecution? Prove the prosecutions case?
It was the authors duty to provide independent expert witness testimony and not prove the prosecutions case. Some may say, “this is just a play on words”, however, if we are being true to ourselves here, what are we saying? is the author of this report helping the prosecution prove their case?
Now this may not reflect the actual analysis that was undertaken, and in this case, I can confirm that about 90% of the report was fair and balanced, however, there were parts that were clearly submitted with the prosecutions goal in mind.
There were elements to the analysis which were missing, and when completed by an independent expert, who was not focused on the prosecution outcome, there was some evidence that undermined the accuracy of the attribution.
This information, in its entirety, needed to be put before the court so that they can make an informed decision based on all of the data, and not just the bits the prosecution wanted to present.
If you are faced with a report and you feel that it may not accurately reflect the data, or you are concerned as to parts that may not have been considered, get in touch.
We have a proven track record in presenting data that is accurate and not misleading, enabling you to advise your client appropriately.
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