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A discussion on the status of expert witnesses

Ric Ward AiTS Aerial View Shab Hill Birdlip Glos. GL4 8JX Tel: 01452 865010 Fax: 01452 865019 Email: rward@aitsuk.com

1.1 WHAT THE EXPERT CAN SAY Just how far can an expert go in their report? There are no easy answers to this question. As an expert witness you are permitted to give evidence of opinion in both civil and criminal cases. However this must be balanced by the fact that as an expert you are not judge and jury. You cannot say that A drove carelessly or was at fault.

Various pieces of case law have over time given a good indication as to what the expert can or, perhaps more appropriately, cannot say.

The case of Liddell v Middleton is particularly important to accident investigators. This civil case which was appealed to the Court of Appeal in 1995 has resulted in lawyers successfully arguing that the evidence of an expert should be excluded on the grounds that it contained no additional information which the Court could not decide on itself. More importantly perhaps is that it laid down guidelines as to what an expert witness could or perhaps more accurately, could not say.

The second case was a criminal case, R v Theodosi in which judgement was again handed down by the Court of Appeal, [RTR 1993 179] in which the expert opinion of the police accident investigator came in for criticism. This case appears to have passed almost unnoticed yet it has important implications for the accident investigator.

The two cases are examined below in more detail.

Liddell v Middleton The judgement was handed down by Lord Justice Stuart-Smith sitting with lord Justice Peter Gibson and Lord Justice Hutchison and was reported in the Times Law Reports July 14 th 1995.

The case was one involving a road traffic accident which was appealed when the court found for Liddell subject to a 25% reduction for contributory negligence. The case was appealed and the Court of Appeal found 50:50. The judgement is reproduced below with the relevant parts italicised.

Lord Justice Stuart-Smith said that the admissibility of expert evidence was governed by section 3 of the Criminal Evidence Act 1972 and rules of court. An expert was only qualified to give evidence that was relevant if his knowledge and expertise was beyond that of a layman and such evidence had to relate to a factual issue in the case.

In this case, the judge had to determine what happened and deduce from that where the negligence lay and whether it caused the accident. Experts could assist the judge in making primary findings of fact, for example by the furnishing of necessary scientific data not available to a layman, from which deductions could be made in respect of speed of the vehicle when the accident occurred.

However, the expert witness was not entitled to draw conclusions from the statements of witnesses to the accident, even less so should he make conclusions that a driver should have sounded his horn or taken evasive action, as happened in the present case.

Those where matters for the trial judge to make findings of fact on. In that respect the evidence of the experts was entirely irrelevant and inadmissible; one of them indeed concluded that from the evidence he had seen that the driving was grossly negligent.

There was no trial by Experts in the English Courts; they contributed to the expense of trials… Lord Justice Stuart-Smith went on to say they should be used as exception rather than the rule.

So where does this leave the expert witness? issues raised.

Lets take a look at each of the

1. An expert was “only qualified to give evidence that was relevant if his knowledge and expertise was beyond that of a layman and such evidence had to relate to a factual issue in the case”.

This statement would appear to define who an expert is and define the issues on which they can base their report. They must have some knowledge or expertise beyond that of a layman. Thus the expert will have completed some relevant course or hold a relevant academic qualification or, have gained much experience over a number of years in a particular field. The evidence on which they base their report must be based on factual issues. Evidence cannot be invented to suit the scenario, there must be some basis in fact.

2. “Experts could assist the judge in making primary findings of fact, for example by the furnishing of necessary scientific data not available to a layman, from which deductions could be made in respect of speed of the vehicle when the accident occurred”. This point tends to reinforce point one in that the expert can give for example, evidence of speed from skid mark. In other words evidence based on fact which would not normally be available to the layman. That is not to say that the expert is restricted to calculating speed from skid marks, the example of skid marks is given as being relevant to this case.

3. However, “the expert witness was not entitled to draw conclusions from the statements of witnesses to the accident, even less so should he make conclusions that a driver should have sounded his horn or taken evasive action”, as happened in the present case.

Two issues are raised in this paragraph. Firstly that the expert witness is not entitled to draw conclusions from the statements of witnesses. On first reading, this sentence appears to say that an expert witness can not make reference to witness statements. However, on more careful analysis and when read in conjunction with points one and two above it would appear that conclusions cannot be draw from witness evidence alone. For example, witness A says the car was speeding thus the conclusion drawn by the expert is that it was speeding. This is a decision that any Court can make and it is not necessary to call upon an expert witness to draw such conclusions.

There would appear to be no reason however to exclude witness statements where reference is made to the statement and then backed up with scientific data. For example, witness A says the car was speeding, however the speed calculated from the skid marks shows that it was travelling at a speed of not less than x mph (kph), which was x mph (kph), below the speed limit for the road. In this case reference is made to the statement but the conclusion is based on scientific data.

The second issue is that expert witnesses are not entitled to give evidence on what a particular defendant should or should not have done. This must be a matter for the Court to decide.

expert witnesses can decide who is guilty then why have a Court at all.

Summing up Liddell versus Middleton, the Court has clearly defined when an expert witness can be used, and to what extent their report can extend. The case is pertinent to both the civil and criminal courts and thus applies as much to the enforcement officer as it does to the civil investigator within the UK.

R v Theodosi

This

case involved the appellants car overtaking another driven by B that itself

was

overtaking a car (thus making them three abreast). The speed limit for the

road was 30 mph, the estimation of speed for the appellants vehicle was 60 mph.

The police accident investigators, report stated that; “The onus for this accident

lies wholly with Mr. Theodosi, the driver of the Peugeot. Mr Theodosi, who was the last vehicle of the three, may have allowed himself to be drawn into a manoeuvre beyond his limited driving experience in that he had to keep up with his friends, or he may have wanted to show off to the passengers that he had in his vehicle. Either way Mr Theodosi’s actions in overtaking two other vehicles at a speed in the region of twice the legal speed limit for the road, amounts in my opinion to nothing less than a wanton act of putting himself and others at risk.

At the pre-trial review the judge ruled that this evidence was inadmissible. At

the trial, before another judge, the prosecution did not question the police officer on this matter but in cross examination by B’s solicitor and, despite objections

from

the appellants lawyer, he was questioned on the matter the questions, and

their

replies went as follows:-

Q

From that expertise [he had previously been asked about his qualifications] and the facts that were presented to you, are you able to help this court as to how this accident occurred?

R

Yes, sir. In my opinion the accident occurred for a combination of reasons, shall I say. If I have the full evidence in front of me of the witnesses’ statements and the evidence of the interviews…

At this point there were objections from the appellants lawyer as to the admissibility of the evidence that was about to be given. He was however allowed to continue.

R

Mr Theodosi was the last vehicle of the three. I believe that he had a limited driving experience prior to this accident and that he may have been drawn into a manoeuvre which was beyond his driving capabilities.

Q

Yes?

R

He may also, sir, have been subject to shall we say some form of peer group pressure, in that he had to keep up with his friends, or he may have wanted to show off to the passengers in his vehicle.

Q

Would this be a fair way of putting it? The onus for the accident lies wholly on the driver of the Peugeot?

R

Yes, sir.

Although the appellants lawyer requested that the jury be dismissed, the judge directed them to ignore the evidence rather than order a re-trial. The appellant

was convicted and subsequently appealed.

During the appeal, which was successful in ordering a re-trial, Russell LJ who gave judgement makes the following comments which are a worthy warning to the expert witness.

Mr Scrivener contends that the evidence given by constable Strong was inadmissible on at least three bases. First, the reference by the officer to peer groups was wholly outside his expertise. It was a comment not supported by any evidence and in any event highly speculative. Second is the point taken by the judge. The witness’ opinion was not based on evidence that he [the accident investigator] had listened to in court but was what was hearsay evidence in the form of statements from the witnesses which he had read. Thirdly and most importantly, the witness was usurping the function of the jury

and answering the very question which it was the jury’s and only the jury’s province to decide. With all those submissions this court agrees.

Once again this case highlights the need for the expert witness to ensure that they restrict their report to findings based on scientific data not conclusions wholly based on witness evidence. More importantly not to try the defendant and find them guilty, a job which really must be left to the court.

1.2 THE USE OF HEARSAY The technical definition of hearsay is, the evidence given by a witness as to the oral or written statement of another. The use of hearsay evidence is generally not permitted to prove the truth of a statement but, is admissible to prove that the statement was made. In other words reference to a witness statement by an expert witness would usually result in that witness being called.

There are of course exceptions to this rule. Statements made by persons who are now deceased and statements made in public documents being two interesting exceptions.

More pertinent perhaps is the admissibility of hearsay evidence in criminal proceedings (Criminal Justice Act 1967) where statements can be accepted as oral evidence provided certain conditions are satisfied. This sort of procedure is quite normal in criminal proceedings where, provided neither party objects to a particular statement, it will be read out in court as if that person where there.

The use of hearsay in civil proceedings has recently been relaxed. The relevant information is dealt with in the Civil Evidence Act 1995 which came into force on 31 st January 1997. Section 1(2) defines hearsay as, “a statement made otherwise than by a person while giving oral or written evidence in proceedings which is tendered as evidence of the matters stated and, references to hearsay include hearsay to whatever degree”.

The Act allows for the giving of hearsay evidence provided that certain guidelines regarding notice etc. are complied with by the lawyers. It would appear that these notices are not as critical to the introduction of the evidence as with criminal proceedings and, failure to notify the other side of such evidence will not necessarily be fatal to its introduction.

Thus it may be that expert witnesses may find an increasing number of cases in which the witnesses to whom they refer in their reports will not themselves be called.

1.3 EXPERT OPINION The evidence of opinion is generally inadmissible in both criminal and civil proceedings. However, the rules that apply to expert opinion are slightly different. The guidelines on expert opinion are mainly based on case law which predates the case of Liddell versus Middleton (above). Care must therefore be exercised by the accident investigator who is asked to give an opinion based otherwise than on the scientific facts. The rules governing expert opinion apply equally to criminal and civil proceedings.

Expert witnesses maybe called on to state their opinion on matters within their specialist knowledge or skill where the court itself cannot form an opinion. One particularly pertinent case to the accident investigator is that of R v Oakley [1979] RTR 417. In this case a police officer with 15 years service on traffic and who had attended more than 400 fatal accidents was allowed to give expert evidence on his theories and conclusions on an accident.

The expert report is admissible as evidence in criminal proceedings whether or not the person who wrote it is called to give oral evidence. (This is with the permission of the court and within certain guidelines). In practice the cases where a report is accepted in criminal proceedings without the investigator being called will be few and far between.

1.4

WHAT MAKES AN EXPERT WITNESS Liddell v Middleton above explores some of the issues about what an expert witness can give evidence about. In that case, Lord Justice Stuart-Smith stated that an expert was only qualified to give evidence where his knowledge and expertise was beyond that of a layman. To some extent, his statement goes someway to describing who can be deemed to be an expert i.e., a person who can give evidence which is beyond the knowledge and expertise of the layman.

The case of Hawkes –v- Southwark 20.02.1998 has further clarified the issue of who can be deemed to be an expert.

The case revolved around the expert evidence given by Mr. D who had a degree in Mechanical Engineering and had given expert evidence on manual handling accidents for the previous 3½ years.

In this particular case he was giving evidence on behalf of a carpenter who, whilst carrying a door, was knocked off balance and fell down a flight of stairs. Mr D concluded his evidence by stating that there had been a casual breach of Regulation 4(1) of the Manual Handling Regulations 1992 by the employer.

His Honour Judge Previte QC subsequently dismissed the claim for damages.

At the Appeal stage Lord Justice Aldous stated, “Mr. D was cross examined as to his qualifications to give evidence as an expert. He has held a BSc degree in Mechanical Engineering and was a chartered member of the Institute of Mechanical Engineers. He had, over a period of about 3½ years, investigated what he described as numerous manual handling accidents and prepared expert’s reports and given evidence on those accidents. He had not attempted to carry a door up the stairs and gave no evidence that he had taken part in any manual handling operations of the type under consideration in this case. That being so it must have been apparent, or should have been, to everyone at the trial that it was questionable as to whether Mr. D had the relevant expertise to give expert evidence relevant to any issue in this case”.

Once again, following the principles of Liddell –v- Middleton, the Judge took the view that Mr. D’s comments that there had been a breach of Regulation 4(1)of the Manual Handling Regulations was a matter for the Judge and not the expert.

Lord Justice Aldous went on to state that in this particular case there was no need for expert evidence because, “The judge was quite capable without expert evidence of assessing the risk”.

Of experts, Lord Justice Aldous went on to say, “I do not believe that Mr. D had established that he was qualified to give expert evidence of the type he did. He had a degree in Mechanical Engineering and over 3½ years investigated and given evidence on manual handling accidents. Whether those cases had any similarity to the one involved in this case is not clear. A person who investigates accidents does not necessarily acquire expertise in the reasons why accidents occur. Policemen investigate large numbers of road accidents. That would not give them sufficient knowledge to act as experts in road accident cases. No doubt experience built up over many years can provide sufficient expertise to qualify a person to give evidence as an expert, but that is not this case as Mr. D had only been investigating accidents for about 3½ years. The fact that a person has expertise in aspects of manual handling cannot qualify him as an expert in all forms of manual handling.”

This paragraph has fundamental implications for those who give expert evidence. Firstly, if a witness is going to use the ‘experience route’ to claim expertise they will have to prove a number of years experience. The judgement infers that such experience will need to be gained over more than 3½ years. This would appear to be the case even where the witness hold a degree in engineering or similar subject. For those that take the academic route, i.e. a qualification in road accident investigation, their expertise would appear to be acceptable to the Courts, but only to within the areas covered by their course. If you, as an expert witness in accident reconstruction, decide to go further, i.e.

examine a motor vehicle in the course of a reconstruction then, you should make sure that you have the necessary expertise in this area.

As a result of this case some experts are undoubtedly going to have to justify their expertise to the Court.

1.5

CONCLUSIONS The expert witness working within the British judicial system needs to be more careful than ever when formulating their reports. This care will need to be extended to giving oral evidence when the investigator must ensure that their comments are based on scientific evidence and fact. Experts must realise the limitations of their expertise and realise when they need to illicit the help of other experts.