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)
[6] Christakis Evangelou and Another v. Stauros G.
Ambizas and Another (1982) 1 C.L.R. 41
[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)
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