Expert Witness

By Maria Zalti, jurist
There are reports that since the 14th century, in the United Kingdom, before the creation of the jury, preceded the application of the institution of experts. Particularly in 1345[1], was the first summons of surgeons to testify at the Court, whether the wound was fresh.
However, the first case which is considered to be the case, which established the admissibility of the testimony of an expert and confirmed, that experts can testify directly to the jury as witnesses of one or other party, is recorded in 1782 in Folkes v. Chadd[2]. In this case namely, the court accepted the testimony of a civil engineer, John Smeaton, about the silting-up Wells Harbor, in Norfolk.
For a considerable period of time and until the situation was formed and consolidated as it is at present, regarding experts, their function was questioned. Sir George Jessel MR[3], stated that “an expert is not like a normal witness but is employed and paid in a sense of gain, being employed by the person who calls him”. To put it differently, experts were considered to be paid agents, of the person who employs them.
Experts institute naturally evolved and developed over the years to reach the present point, where the use of them, is becoming more and more frequent in both, political and criminal proceedings. The general rule is that, a witness can testify only to facts that have come to his notice, without explaining the conclusions that can be drawn from these events, in his opinion, unless he testifies as an expert[4]. Court is not allowed to act as an expert. Where specialized testimony is required, it cannot rely on actual testimony, in order to draw conclusions, on related litigation issues.
As a matter of fact, where special knowledge is required, Common Law allows the acceptance of testimony by persons who have gained relevant cognition as a result of study, experience or training. Regarding specialized study, in R v. Silverlock[5] is established that the issue under consideration is "In what field is this witness being offered as an expert?". The particular branch with which the expert deals, makes him stand out from the lay witness.
Supplementary, with regard to experience, in Folkes, whose occurrences we cited above, it was expressed, that a testimony can also be accepted when it comes from mens of science, within their science.
The areas, that can be covered by expert’s testimony are: psychology (a psychologist), psychiatry (a psychiatrist), economics (an economist), statistics (a statistician), medicine (a physician), anthropology (an anthropologist), criminal justice (a criminologist), sociology (social scientist), education (an educator), engineering (an engineer).
The Judge Pikis in Evangelou v. Ambizas[6] expressed: “to qualify as an expert, it must be established that a witness, on account of his knowledge and experience in a given field of knowledge, is qualified to the extent that it is safe to accept his opinion as evidence of the fact in issue”.
Expert’s duty, before the Court, lies in a reasoned, objective and impartial presentation of the necessary scientific criteria. The Judge Cooper[7], determine the mission of the experts in the administration of justice: “Their duty is to provide the judge or the jury with the necessary scientific criteria to test the accuracy of their conclusions so that the judge or the jury may form their own independent judgment by the application of these criteria to the facts proved in evidence”. Establishment which was adopted by Cyprus Supreme Court, in Anastassiades v. The Republic[8], and in subsequent decisions.
Judicial evaluation of an expert’s testimony is based on the same principles, applied on a lay witness testimony. Only their behavior to the stand, is not so important in establishing their credibility[9]. On the other hand, if an expert does not show seriousness and accountability, he can be accountable for professional negligence[10]. Another key thing to remember, is the impact on the assessment of expert’s testimony. That said, their conclusions are not reversible if they were fairly open to the courts, and were impossible to say that they were wrong.
Further, in assessing the scientific method, to ascertain whether an expert testimony would be allowed to assist the jurors in extracting conclusions from the case, in the United States, Court invented the Frye criterion, created in Frye v. United States[11], according to which, scientific advice based on scientific technique, is only acceptable, when this technique is generally accepted as credible in the relevant scientific community.  This criterion, which is also known as "general acceptance" standard, has been criticized and has been replaced in many states of America, by the application of the “Daubert”[12] criteria, which are:
Where the theory or technique can be, or has been tested.
Whether the technique has been subject to peer review and publication.
What is the known or potential rate of error.
The existence and maintenance of standards controlling the technique's operation. This point is particularly important in order to have a strong belief, that the expert has not led to arbitrary conclusions.
Whether this method is generally accepted in society itself as a reliable method. If this is a scientifically accepted method (for instance the analytical comparative method), with its application, the margin of error is limited, especially if the expert has a great deal of experience in this.
Particularly, in Kumho case[13], was held that Daubert criterion, also applies to evidence based on technical and other specialized knowledge. Moreover, it was stated, that the criteria meant to be helpful, not definitive.
Along these lines, expert's testimony has a salient part of judicial process· establishes complementary the supporting of original and substantive version, of one of the parties, and the withdrawal of the other party's version. To that end, in light of all mentioned above, someone can say, that the role of witnesses is helpful in finding the truth in legal process. Similarly, to lay witness, expert witness, is considered to be an essential element of the judicial mechanism, and his contribution in court proceedings, is very important for subject matter and outcome.
* Maria Zalti (4 year LLB Law Student, Frederick University)

[1] Anonymous, Lib.Ass 28,pl.5 (28 Ed.III).
[2] Folkes v. Chadd [1782] 3 Douglas 157  
[3] Lord Abinger v Ashton (1874)
[4] R v Wright (1821) Russ and Ry 456
[5] R. v. Silverlock [1894] 2 QB 766
[6] Christakis Evangelou and Another v. Stauros G. Ambizas and Another (1982) 1 C.L.R. 41
[7] Davie v. Edinburgh Magistrates (1953) S.C. 34, 40
[8] Anastassiades v. The Republic (1977) 2 C.L.R. 97
[9] Joyce v.  Yeomans [1981] 2 All E.R. 21
[10] Jones v Kaney (2011) 2 All ER 671
[11] Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
[12] Daubert Trilogy: Daubert v Merrell Dow Pharmaceuticals, Inc, US 579 (1993), General Electric Co v Joiner, 522 US 136 (1997) and Kumho Tire Co LTD v Carmicheal, 526 US 137 (1999)
[13] Kumho Tire CO LTD v Carmicheal, 526 US 137 (1999)

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