The Law of Evidence Fact Sheets – Opinion Evidence

OPINION EVIDENCE - INTRODUCTION

This fact sheet describes the law of evidence as it relates to the admissibility
or otherwise of a witness’s opinion in criminal cases.

THE GENERAL RULE

The general rule is that the opinions of witnesses are not

admissible. Witnesses are normally confined to stating the facts. The
reasoning behind this rule is that it is the role of the court to form any opinions
which need to be formed, and there is a risk that the court may be unduly
influenced by the opinion of a witness who may not be as impartial as the
court, and the court must draw its own inferences from the facts stated.

EXCEPTIONS TO THE GENERAL RULE

There are two important exceptions to the general rule. These occur in cases
where the court lacks the witness’s competence to form an opinion on a
particular issue whether through lack of direct knowledge or through lack of
expertise.

EYE WITNESS’ OPINIONS OR OPINIONS AS SHORTHAND FOR

FACTS

Statements of opinion by an eye witness to the facts in issue are often a

convenient way of stating several facts, e.g., “Bob was drunk”. These types of
statements will generally be admissible as long as a proper appraisal of the
facts does not call for any special expertise.

Other examples of opinion statements that are usually admissible include

statements about the speed of a car involved in an accident, and the
identification of persons, animals, places or things (which are technically
opinion statements).

EXPERT OPINIONS

Where the court is asked to determine issues that are so far removed from the
court’s experience, expert opinion on those issues is admissible. (Folkes v
Chadd)

The areas in which expert evidence is admissible will usually be those in the
medical field, e.g., a pathologist’s opinion as to the cause of death, or in the
scientific field, e.g., the interpretation of data collected using a sound level
meter with a frequency analysis etc. However, there is often a fine line
between those issues that do call for expert’s opinion, and those that do not.

Psychiatric evidence is particularly fraught with difficulties in that the courts

have decided that this area often deals with matters of human nature and

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 The Law of Evidence Fact Sheets – Opinion Evidence

behaviour within the limits of normality, which is something that the court
can determine itself without expert psychiatric evidence. (R v Turner)

WHO IS AN EXPERT?

If an issue requires the opinion evidence of an expert, only a suitably

qualified expert can give it.

The starting point in examining in chief an expert witness is to establish

his/her expertise. This does not necessarily mean that s/he has to have
formal qualifications. However, it will not be easy to satisfy a judge that a
witness is an expert in a field if s/he lacks formal qualifications. (R v
Silverlock)

NATURE AND CONTENT OF EXPERT EVIDENCE

An expert’s opinion will be based on much more than the facts of the case
being considered in court. It will be based on experience and information
obtained from textbooks etc. This information is technically hearsay, but is
admissible as helping to form the expert’s opinion. (R v Abadom)

It should be noted that the facts of the case in which the expert’s opinion is
sought must be proved by admissible evidence, which may be given by the
expert, or some other witness, e.g., a scientist may have carried out routine
tests, which are then interpreted by an “expert”. The scientist must give
evidence of the tests and the results recorded, whilst expert opinion evidence
is then given about the interpretation of those results.

ADVANCE NOTICE OF EXPERT EVIDENCE

In general, the prosecution is obliged to disclose expert evidence, along with

evidence of facts to the defence, for the purposes of natural justice. There is
generally no reciprocal duty on the defence for summary cases.

For Crown Court cases, however, the position was changed by the Crown
Court (Advance Notice of Expert Evidence) Rules 1987, made under the
Police and Criminal Evidence Act 1984 (PACE) S. 81. Under these rules,
any party proposing to rely on expert evidence is required to furnish the other
side with a written statement of that expert’s findings and/or opinion. The
other side may further request written details of any test or calculation etc.
relied on by the expert in giving his/her opinion. If these rules are not adhered
to, the side wishing to rely on the opinion must seek the court’s leave to admit
it.

The expert report may be relied on in court even if the maker is not to give
oral evidence by virtue of S.30 of the Criminal Justice Act 1988, but only
where, the court gives leave to do so. In considering whether to permit such a
report, the court will consider the relevance of the report’s contents, the
reason why the maker cannot give oral evidence, and the unfairness caused
to the accused in admitting it etc.

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 The Law of Evidence Fact Sheets – Opinion Evidence

The Criminal Procedure and Investigations Act 1996 S.20 allows for
similar rules of court to be made for summary cases (in the Magistrates
Court).

RESPONSIBILITIES OF EXPERTS

Some recent cases have set out some of the responsibilities of expert
witnesses and the Courts have admonished those that approach their task in
a less than prepared manner.

In Autospin (Oil Seals) Ltd v Beehive Spinning (a firm) the court stated
that an expert witness carries out a lot of responsibility because their evidence
is afforded special respect and weight, particularly by a jury. An expert must
approach the case in which s/he is giving their opinion seriously, and expect
to be strongly censured if s/he doesn’t. This necessarily involves researching
the case thoroughly so that it is a considered expert opinion.

The case of National Justice Compania Noviera v Prudential Assurance

added that a well as giving independent and unbiased evidence, an expert
should tell the court if s/he did not have experience of a certain area being
questioned on, or that s/he had insufficient information on which to base a
properly researched conclusion.

REFERENCES

Autospin (Oil Seals) Ltd v Beehive Spinning (a firm) 1995.

Criminal Justice Act 1988.

Criminal Procedure and Investigations Act 1996.

Crown Court (Advance Notice of Expert Evidence) Rules 1987.

Folkes v Chadd (1782) 3 Doug KB 157.

National Justice Compania Noviera v Prudential Assurance.

Police and Criminal Evidence Act 1984.

R v Abadom (1983) 76 Cr App R 48.

R v Silverlock (1894) 2 QB 766.

R v Turner (1975) QB 834 CA

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