“Humped backs, which are rare in Murderers, are more frequent among Ravishers, Forgers and Incendiaries; ...Thieves often have a grey iris and in stature ...are inferior to Highwaymen and Murderers. Scanty beards are rare”.
In the eighteenth and nineteenth Centuries, equally exotic claims were made for Physiognomy, and Phrenologists were convinced that criminal tendencies could be read in the bumps of the head.
Modern forensic science has made huge advances over the last two decades, with the most significant techniques probably being fingerprinting, DNA profiling, facial mapping, and with so many recent miscarriages of justice, Electrostatic Detection Apparatus, (ESDA). These techniques have highlighted the fact that far less emphasis can be placed on the reliability of confession evidence and witness identification. See for example the witness confusion that arose over compiling an E-Fit of the suspect in the recent killing of television presenter, Jill Dando. It is clear that in the future, convictions will be made to rely more and more on indisputable forensic proof.
In English law, the particular specialist field need not be generally accepted before expert testimony is admissible but it must be sufficiently established to be reliable. The telephone is now in such common use that it has become an everyday tool of the criminal just as it has for the rest of us. The New York State Police say that as an aid to identification the ‘voiceprint’ may prove to be as valuable as the fingerprint and are setting up what they call a ‘Talking Rogues Gallery,’ where voice samples are routinely taken of felons convicted of appropriate crimes; such as ransoms, bomb threats and obscene calls.
In R v. Robb, techniques of voice identification were in issue. The evidence consisted of recordings of telephone ransom demands compared with control recordings of the accused’s voice. The court accepted that voice identification or ‘voiceprinting,’ was a field that called for expert testimony. The witness concluded that there was no difference between the two examples; however, the ‘expert’s’ technique simply involved listening carefully to the two tapes! This was neither scientific or a respected approach within the field of phonetics, but the court took a pragmatic approach and treated any doubts about the accuracy of the technique as a question of weight for the jury.
“Studies show that ...the accuracy of [Health Professionals] judgements does not necessarily surpass that of lay persons, thus raising substantial doubt that [they] meet the legal standards for expertise”.
In contrast to the examples above, psychological profiling and the polygraph have yet to be accepted as valid evidence. With regard to psychiatric evidence, there is much controversy surrounding the very existence of certain syndromes and disorders such as battered woman’s syndrome, rape trauma syndrome, and so on; and while it is commonly accepted that labelling and treatment of such conditions may have a beneficial therapeutic value, it is argued that such scientifically unproved concepts may be unsuitable for courtroom presentation.
With regard to the polygraph; as an instrument of scientific accuracy, it is flawed in almost all respects - not least in that it cannot determine whether a person is telling a lie - only whether there has been a change in their metabolism. It seems that this particular device is destined to remain outside of the English courtroom and in the world of popular detective fiction.
Before an expert witness can give opinion evidence relating to any particular issue, he or she must first establish their credentials and ultimately it is a matter of fact for the judge to decide whether the witness is indeed an expert. This may depend on whether or not the witness had undergone formal study giving the requisite expertise in that area or whether his experience and or training is such as to make him an expert.
In some cases there is a statutory requirement for a witness to be formally qualified; such as those that involve the defence of insanity, where a jury cannot reach the special verdict of, ‘not guilty by reason of insanity,’ except on the evidence of two or more registered medical practitioners, at least one of whom is approved by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder.
On the issue of diminished responsibility,
“...while s. 2(1) of the Homicide Act 1957, does not require that medical evidence be adduced, it makes it a practical necessity if the defence is to begin to run at all.”
It is not essential that in all cases the expert possesses formal qualifications in the relevant field of expertise. Commonly, if there are some credentials, the evidence is likely to be admitted and the rest would be a matter of weight. In R v. Silverlock, opinion evidence from a solicitor was admitted with respect to hand writing, even though he did not posses any formal qualifications in that field but merely studied it as a hobby.
Expert opinion evidence is not admissible per se in all criminal trials. Where the issue is one for which the jury is able to decide and form their own opinion without the assistance of experts, the matter being within its own experience and knowledge, such evidence is inadmissible. The reason is because such evidence is usually unnecessary and irrelevant.
“...trial by psychiatrists would be likely to take the place of trial by jury and magistrates. We do not find that prospect attractive and the law does not at present provide for it”.
In R v. Chard, evidence from an expert with regard to the alleged inability of the accused to form the necessary mens rea of the offence was disallowed by the Court of Appeal. The Court emphasised that where there was no issue of mental instability or illness, it is inappropriate to allow evidence from a medical witness as to the state of the accused’s mind.
Likewise in R v. Turner, where the accused’s defence was one of provocation. The Court of Appeal excluded evidence from a psychiatrist because there was no issue regarding his mental state. The issue of provocation was one which the jury could decide. Lawton LJ stated in Turner,
“...the fact that an expert witness possessed impressive scientific qualifications did not necessarily make his opinions on matters of human nature any more helpful. These were matters for which the jury was competent to decide”.
These cases are interesting when one considers the nature of the ‘expert’ testimony on voice identification given by the witness in, Robb!
The Privy Council in Lowery v. The Queen, held that the restriction on the admissibility of expert evidence, includes a restriction on the credibility of a witness or the accused, save in exceptional circumstances. Turner can be reconciled with this decision since, in the circumstances of Lowery, it appears that the jury needed expert assistance in relation to the relative aggression of the two accused. Moreover, irrespective of this, Lowery had testified on his own behalf and had already mentioned his own good character. The psychologist’s evidence was admissible in rebuttal.
Although such evidence was admitted in Lowery, some commentators regard this decision as applying only to the specific facts of the case rather than establishing any general principle. This approach appears to be correct in the light of R v. Rimmer, where the trial judge refused to allow the evidence of an expert on the basis that this related only to the credibility of the accused.
At one time there was also the rule that expert opinion evidence was inadmissible on the ultimate issue in the case. Traditionally, this rule prevented the expression of opinion on the very point that the trier of fact was to decide; primarily this was seen as a usurpation of the function of the jury. In many civil trials, the rule was evaded and the expert was able to express an opinion on the final issue so long as it was couched in different language to that employed by the court. Finally, the rule was abolished by Parliament in 1972.
This was followed by calls for a similar reformulation in respect of criminal trials and Professor Murphy suggests that, ‘...the English common law should now permit expressions of opinion by experts on ultimate issues, subject to the power of the judge in a jury trial to limit testimony in any case where there is a danger of the jury according the testimony undue weight...’
It is clear that whilst the rule still exists, in practice expert evidence on the ultimate issue is allowed in many cases. Subject to the earlier civil evidence rule: ‘so long as, the diction employed is not noticeably the same as that which will be used when the matter is subsequently considered by the court.’
Thus the rule has become ‘a matter of form rather than substance’. In DPP v. A & BC Chewing Gum Ltd. Lord Parker CJ stated that,
“Those who practice in the criminal courts see every day cases of experts being called on the question of diminished responsibility, and although technically the final question, ‘Do you think he was suffering from diminished responsibility?’ is strictly inadmissible, it is allowed time and time again without objection.”
The difficulty with expert opinion evidence is that sometimes the expert relies on the work of other individuals. For example, a pathologist might well rely on an analyses of stomach contents or body tissues which was carried out by others. Thus the expert witness, the pathologist, has no first hand knowledge and this, if retailed to the court, would offend against the rule of hearsay.
In R v. Bradshaw, the Court of Appeal held that the evidence of the psychiatrists, on the condition of the accused, was hearsay and inadmissible as this had been entirely based on the fact that the accused had told them that he was, ‘in a state of unreality and confusion’. The court found that the doctors could not testify to such statements as proof of their truth, but they could testify to them in order to explain the basis on which they arrived at their conclusions about the defendant’s mental condition.
By way of contrast to Bradshaw, in R v. Abadom, the Court of Appeal held that the primary facts, upon which the expert opinion was based, (the refractive index of the glass), was direct admissible evidence, although the expert had relied on secondary information, the statistics supplied by the Home Office Central Research Establishment. The court decided that the expert was entitled to rely on this research in forming his opinion and that this did not violate the rule against hearsay. They did however, go on to say that,
“these are in our judgement the limits of the hearsay rule in relation to evidence of opinion given by experts, both in principle and on the authorities”.
In civil proceedings prior to 1995, expert testimony was a legitimate technique to circumscribe the hearsay rule. However, since the Civil Evidence Act 1995 came into force, no evidence can be excluded on the ground that it is hearsay, of whatever level.
Although at one time there was no statutory provision covering the admissibility of expert reports in criminal cases, s. 30 of the Criminal Justice Act 1988 has now changed that. By virtue of s. 30(1) of the Act, an expert report is to be admissible as evidence in criminal proceedings whether or not the person making it intends to give oral evidence in those proceedings. However, by s. 30(2), where the expert does not testify in court, the written report would be admissible only with leave of the court. In deciding whether to grant leave, the court is directed to consider the various matters listed out in s. 30(3), including the risk that the admission of the report will result in unfairness to the accused.
Given that an expert report is admissible evidence in its own right, unlike a witness statement, it is worthy of note that there is no reason why the jury should not take the report with them when they retire to consider their verdict. It ought to be remembered however, that studies have shown that juries often find expert evidence compelling and when that evidence is in black and white and sitting in front of ‘twelve ordinary members of the public,’ its effect may be increased substantially.
Professor Murphy feels that, ‘the courts have not always accorded to expert evidence the recognition it deserves, perhaps because of the risk that a witness who usually receives a fee for his appearance may, with less than true scientific objectivity, render an opinion unduly favourable to the party calling him’. This, it is submitted, is perhaps a little cynical given the general standing of most expert witnesses. It has recently been reiterated in the Court of Appeal, that an expert witness should be objective and should not attempt to be an advocate for the party calling him.
It is suggested that although it can still be said in general, that opinion evidence is not usually admissible, in situations where it is, the courts have put in place vigorous safeguards to ensure that it is admitted only in appropriate circumstances. Furthermore, putting the issue of independence to one side, it is submitted that expert opinion is hugely preferable to a dogged adherence to direct evidence which can produce perverse results such as was seen in Bowden v. Bowden, where the direct evidence of a mother in a paternity case, that she gave birth more than ten months after conception, was preferred over the opinion of several doctors to the contrary!
Bibliography
Books
Andrews, J. A. Criminal Evidence Statutes & Materials Waterlow, London 1990
Keane, The Modern Law of Evidence 3rd Ed. Butterworths, London: 1994
Lane, B. The Encyclopaedia of Forensic Science Headline, London: 1992
Lewis, G. R. Illustrations of Phrenology 1 (1840) 1 July 6 & Phrenological Journal
No. XCIV (1892) December
Lombroso, C. L’Uomo Delinquente 1876
Murphy, P. Ed. Blackstone’s Criminal Practice 1995
Murphy, P. Murphy on Evidence 6th Ed. Blackstone, London: 1997
Simpson, K. Forty Years of Murder Granada, St Albans: 1978
Articles
Graham, J. Appeal Against Findings on Issues of Foreign Law (1999) 27 SLR 46
Spencer, J. (1991) Criminal Law Review 106
Stockwell (1993) 97 Cr. App R 260
Uglow, S. Law of Evidence http://speke.ukc.ac...evidence
Zuckerman in: Uglow, S. Law of Evidence http://speke.ukc.ac...evidence
Reports
Criminal Law Revision Committee 11th Report (Cmnd. 4991) 1972
The Law Commission Evidence in Criminal Proceedings: Hearsay and Related Topics Consultation Paper No. 138 (1995)
Table of Legislation
Homicide Act 1957
Civil Evidence Act 1972
Crown Court (Advance Notice of Expert evidence) Rules 1987 (SI: 1987 No. 716)
Criminal Justice Act 1988
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991
Civil Evidence Act 1995
Table of Cases
Bowden v. Bowden (1917) 62 SJ 105
Buckley v. Rice Thomas (1554) Plowd 118
Daniel M’Naghten’s Case (1843) 10 Cl & F 200
DPP v. A & BC Chewing Gum Ltd. [1968] 1 QB 159
Folkes v. Chadd (1782) 3 Doug KB 157
Lowery v. The Queen [1974] AC 85
MCC Proceeds Inc. v. Bishopsgate Investment Trust plc & Others 4 November 1998
Myers v. DPP [1965] AC 1001
R v. Abadom [1983] 1 WLR 126
R v. Ahluwalia [1992] 4 All ER 889
R v. Bradshaw (1985) 82 Cr. App. R 79
R v. Byrne [1960] 2 QB 396
R v. Chard (1971) 56 Cr. App. R 268
R v. Rimmer [1983] Crim L R 250
R v. Robb (1991) 93 Cr. App R 161
R v. Silverlock [1894] 2 QB 766
R v. Turner [1975] QB 834
Vernon v. Bosley (No. 1) [1997] 1 All ER 577
Blackstone’s Criminal Practice 1995 Ed. Peter Murphy @ 1955
Subject to: Crown Court (Advance Notice of Expert evidence) Rules 1987 (SI: 1987 No. 716)
per Lord Mansfield in: Murphy, P. Murphy on Evidence 6th Ed. Blackstone London: 1997
Folkes v. Chadd (1782) 3 Doug KB 157
see below pp. 6 &7 - R v. Turner [1975] QB 834 & R v. Chard (1971) 56 Cr. App R 268
Buckley v. Rice Thomas (1554) Plowd 118 per Saunders J @ 124
Lombroso, C. L’Uomo Delinquente 1876 in: Lane, B. The Encyclopaedia of Forensic Science Headline London: 1992 @ 7
Lane, B. The Encyclopaedia of Forensic Science Headline London: 1992 @ 298
Lewis, G. R. Illustrations of Phrenology 1 (1840) 1 July 6 & Phrenological Journal No. XCIV (1892) December
Lane, B. The Encyclopaedia of Forensic Science Headline London: 1992 @ 406
R v. Robb (1991) 93 Cr. App R 161
Zuckerman in: Uglow, S. Law of Evidence http://speke.ukc.ac...evidence @ 6
R v. Ahluwalia [1992] 4 All ER 889
Uglow, S. Law of Evidence http://speke.ukc.ac...evidence @ 3
Blackstone’s Criminal Practice 1995 Ed. Peter Murphy
(Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 ss. 1(1) & (2)
R v. Byrne [1960] 2 QB 396 @ 402
R v. Silverlock [1894] 2 QB 766 per Lord Russell CJ @ 771
Blackstone’s Criminal Practice 1995 Ed. Peter Murphy @ 1956
R v. Turner [1975] QB 834 per Lawton LJ @ 842
R v. Chard (1971) 56 Cr. App R 268
R v. Turner [1975] QB 834
Lowery v. The Queen [1974] AC 85
Murphy, P. Murphy on Evidence 6th Ed. Blackstone London: 1997@ 309
R v. Rimmer [1983] Crim LR 250
M’Naghten’s Case (1843) 10 Cl & F 200
Civil Evidence Act 1972 s. 3
Criminal Law Revision Committee 11th Report (Cmnd. 4991) para. 268 & Stockwell (1993) 97 Cr. App R 260 per Lord Taylor of Gosforth CJ @ 265
Murphy, P. Murphy on Evidence 6th Ed. Blackstone London: 1997@ 311
Keane, The Modern Law of Evidence 3rd Ed. Butterworths, London: 1994 @ 407
Stockwell (1993) 97 Cr. App R 260 @ 265
DPP v. A & BC Chewing Gum Ltd. [1968] 1 QB 159
Ibid per Lord Parker CJ @ 164
R v. Bradshaw (1985) 82 Cr. App R 79
R v. Abadom [1983] 1 WLR 126
Civil Evidence Act 1995 s. 1
Murphy, P. Murphy on Evidence 6th Ed. Blackstone London: 1997@ 306
Vernon v. Bosley (No. 1) [1997] 1 All ER 577 per Evans LJ @ 600
Bowden v. Bowden (1917) 62 SJ 105
Murphy, P. Murphy on Evidence 6th Ed. Blackstone London: 1997@ 310 n. 14