Week 11: Opinion Evidence - LAWS13010: Evidence and Proof

get everybody and welcome to week 11 of laws one three zero one zero evidence and proof I&#39;m Anthony Mara knack this is the last week of substantive material for this course before we have a review week next week and in this last week we&#39;re going to be looking at opinion evidence which is the final key area of evidence law that we haven&#39;t yet covered what we&#39;re going to be doing this week is first of all distinguishing opinion evidence from from direct observation evidence and then we&#39;ll talk about the two types of opinion evidence which are non expert opinion evidence and expert opinion evidence we&#39;ll look first at non expert opinion evidence and how it can and can&#39;t be used and then we&#39;ll look at expert opinion evidence in somewhat more detail we&#39;ll talk about who is an expert what sorts of things they can talk about and what they have to do in order to make expert opinion evidence admissible in the court so what is opinion evidence will opinion evidence as we said very early on in this course is evidence that is based on an interpretation or an inference founded on facts so in other words a person is not simply describing facts to the court they&#39;re actually interpreting those facts or trying to say what they think those facts mean as well generally speaking it&#39;s the courts role to interpret facts remember the witness is only there as a delivery system for X for evidence the court is only interested in a witness because the witness can provide the court with facts generally it&#39;s the courts job to then take those facts and having had positions put to it by both sides by the lawyers of both sides the court will construct a narrative out of those facts which says what the Court believes actually happened as a result as a matter of course the courts not terribly interested in the opinions of other people the court doesn&#39;t need to have witnesses to come before the court and explain to the court how it should interpret the the role of witnesses is simply to provide the facts so that&#39;s the general rule because this is evidence law we now have to look at all of the exceptions there are two general types of opinion evidence the first is non expert opinion evidence non expert opinion evidence or lay opinion evidence is given by people who have no particular expertise they&#39;re just people like you and me who happen to see something and who are asked what they saw in most cases a non expert is not going to be any more capable than the judge or the jury of placing an interpretation on facts so generally speaking the non experts role is to say what they saw give their testimony based on their observations with their five senses and leave it to the court to make its own interpretations the other sort is expert opinion evidence in expert opinion evidence inferences are attached to facts by an expert who is capable of drawing inferences that the court itself cannot these are people who have expertise through study or experience which allows them to see a set of facts and draw inferences that are only going to be known to people with that expertise the Court recognizes that expertise and reaches out to it to help the court to interpret the facts which have been placed before it so that&#39;s the difference between the two let&#39;s start with non expert opinion evidence there are really two types the first type is where the witness simply gives an opinion to be quite blunt about it the court doesn&#39;t care so if a witness was asked about a let&#39;s say an accused person do you think he has good hygiene habits and the witness said no he usually smells and doesn&#39;t seem to look after himself very well at all and I think he&#39;s a bit of a grub that&#39;s all opinion nobody cares the courts not interested in the the witness&#39;s opinion about about the accused person they&#39;re only witnesses in their observation so they&#39;re only interested in their observation if they limited themselves to saying in my observation he generally seemed quite unkempt they might sneak away with that but generally speaking a witness just giving an opinion is neither here nor there it&#39;s pointless testimony the second type of opinion though is an observational opinion and an observational opinion is usually allowed because an observational opinion simply enables the witness to tell their story properly the example that I&#39;ve given in the slide there shows I think reasonably well what an observational opinion is you ask a witness a question and the answer is I saw my car in the car park now at first glance to anyone who&#39;s not a lawyer that sounds pretty much like a statement of a fact I saw my car in the car park but it&#39;s not is it it&#39;s a statement of opinion and interpretation based on facts that were observed if the person kept it just to the absolute facts then what they would say is something on lines of I possess a dark blue Subaru Impreza with license plates one two three ABC I went into the car park and identified that in the car park was a dark blue Subaru Impreza bearing the license plates one two three ABC I pressed the button on my key which unlocks the vehicle which unlocks my car and only my car and when I press the button on that key but the doors unlocked of the Subaru Subaru Impreza one two three ABC which was left in the car park now that&#39;s a statement of sheer fact and what the witness really means is I saw my car in the car park it makes much sense to willette much more sense to allow those basic levels of interpretation to allow the witness to tell their story it&#39;s the same as the example we gave earlier in this semester where the witness says I heard a bang outside now if you had a witness who says I heard a bang outside your follow-up question might have been what do you think that bang sounded like a gunshot or a car door or somebody dropping something and the witness might say well it sounded to me like a car door slamming that&#39;s an opinion but it&#39;s an opinion that is really an interpretation of their observation it makes no sense to say that is an opinion what it really is is an opinion that helps us to understand how they interpreted the facts around them and how they might have reacted to those facts around them a person who hears a car door slamming outside their house is likely to react very differently to a person who hears a shot being fired immediately outside their house so for those observational interpretations we almost treat them like their observations and the court doesn&#39;t mind them what the court won&#39;t allow is once those opinions start to get to the point where they&#39;re no longer assisting the witness to give their evidence the witness is simply shooting off at the mouth and giving their opinions to the court so you need to distinguish between the two under the common law non expert opinion is generally inadmissible the only time it is admissible is if it is necessary to confer the witness to convey what it is that they saw or heard and if the evidence is about something for which a normal person would normally be able to give an inference the examples that are given therein lift go and Jackson are things like age we can normally tell whether somebody is old or young sobriety speed time distance whether handwriting the identity of a person whether somebody seems to be healthy or what they seems to be their emotional state these are a number of examples that were given in with co-counsel on Jackson so basic normal things that we actually can see are interpretations and inferences but which is so closely based on facts that it really makes no sense to talk about the facts without also talking about the inferences so that&#39;s non expert opinion that&#39;s pretty easy most of this lecture is going to focus on expert opinion which is much more complicated expert opinion happens when the court needs somebody who has a greater level of expertise to explain to the court what sorts of inferences should be drawn from particular facts and in this in this case I&#39;m going I&#39;ve quoted for you the oldest piece of evidence law that that I routinely use and that&#39;s from the case Buckley and Thomas which was decided in 1554 where the court said in matters that arise in the law which concern other Sciences or faculties we commonly apply for the aid of that science or faculty this is an honorable and commendable thing in our law so in other words it is honorable and commendable that the law is prepared to reach out to other areas of knowledge in order to ensure that the law has sufficient knowledge before it to make a just opinion now of course that leads us to a number of interesting questions the first one is who is an expert who&#39;s going to count as an expert for the purpose of giving expert evidence well the first step is we have to work out whether there is a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience so in other words before you can be an expert in something there has to be something to be expert in the case that we&#39;re going to focus on here is ozland in the crown now this was a case where a person who was accused of criminal offenses was raising a defense related to what&#39;s now known as battered wives syndrome and in order to demonstrate to the court that this syndrome was actually a real thing they proposed to call an expert witness and the court had to decide whether battered wives syndrome was a sufficiently organized body of knowledge that somebody could actually be expert in it and eventually decided that yes this was now a distinct area of psychology in which it was possible to have expertise there will be some areas of humanity in which it might be quite difficult to demonstrate that a person is regarded as an expert an example a very curious example that was given to me is the example of lovemaking that&#39;s something that&#39;s very widespread but it would actually be very difficult to work out how somebody could be determined to be an expert or a non expert in that area if you if you ask any teenage boy he&#39;ll probably profess to a certain level of expertise but in reality there&#39;s no sufficiently organized level of knowledge or experience around that particular activity for anybody to genuinely claim that they could be broadly recognized within the community as being an expert so we start by saying is this an area of knowledge in which a person might claim expertise if it is we then say is the person who&#39;s claiming to be an expert actually recognized within that body of knowledge as being an expert and there&#39;s no specific formula that can be applied to work out who is an expert you can become an expert through study and through the gaining of formal knowledge or you can become an expert through sheer practical effort the exact the the the most common example of the the latter type is the crown and Harrison 1997 case in which the expertise of an Aboriginal tracker was held to make that person an expert for the courts purposes because it was held that that the tracking of animals and people in the Australian bush land was a sufficiently organized body of knowledge this is something that has been handed down within indigenous communities from generation to generation and that there was a a sufficient understanding of that body of knowledge for the court to be able to recognize that the witness was regarded as an expert so that&#39;s how we determine who is an expert first we ask is there a sufficient body of knowledge to acts we be an expert in anything and then we ask is the actual witness who&#39;s being brought before the court regarded within that body as being an expert so that gets your expert onto the stand they haven&#39;t actually given any evidence yet they&#39;ve just reached the stand the next thing we have to think about is what&#39;s the expert witness going to do when they get there you see we are asking the expert witness to give us inferences and interpretations based on facts that means we have to think carefully about what are the facts that the the witness is going to be making their opinions based on we can look at a case from the late 1940s called bug and day now in bug and day a mechanic was called to give expert evidence in relation to it to a motor vehicle crash and the expert gave evidence of what speed he assessed the vehicles to have been traveling at it later emerged that the expert had not been told a number of key facts that were necessary to make that assessment for instance he was not told the mass of the vehicles that were involved in the collision now unless you know the mass of two things that collide is going to be very difficult to assess what speed they might have been colliding at because obviously a big heavy thing will do a lot more damage even at slow speed than a light flimsy thing so given that the correct facts had not been given to the expert the experts opinion was ruled to be of no assistance to the court so the court will always want to know what facts were the experts opinion based on second thing is those facts then need to be capable of being proven in evidence there&#39;s no point getting an expert to give an opinion that&#39;s based on a bunch of facts if we then find that those facts are all just kind of made up by the lawyers that those facts don&#39;t actually have any any real relevance to the real case at hand if those facts are basically hypothetical then the expert is going to give a hypothetical opinion but it&#39;s not actually going to be useful to assist the court to make interpretation of the facts in this case so if a fact is in issue it has to be demonstrated by evidence so you can&#39;t give a witness give an expert opinion get an expert witness a bunch of facts and say please interpret these and then take that interpretation into the court unless you&#39;re also going to be prepared to prove the facts that you&#39;ve asked the whip in the expert to base their opinion on finally the witness has to be capable of explaining to the court how they arrived at their opinion if they can&#39;t explain to the court how they arrived at their opinion then why should the court believe that their opinion has any validity this is why a good expert witness is worth their weight in gold and why they can command some astronomical fees to appear in court because the fundamental skill of a great expert witness is to take complicated concepts within their field of knowledge and reduce them to a level that is comprehensible for people who lack that knowledge and experience they need to be able to explain how they reached what might be a very complicated final position in simple laypersons terms and that&#39;s a very difficult skill there are some other rules that we need to apply in relation to expert opinion evidence first of those is that expert opinion experts are not entitled to give opinions on questions of law so you&#39;re not entitled to bring in a professor of law your local University or local law school and get them up on the stand and ask them to interpret a particular piece of statute or a particular piece of case law that&#39;s relevant to the case at hand and the reason is that if you think about that case from 1554 that I mentioned a few moments ago it says that the law will reach out to other areas of knowledge in order to obtain expert opinion evidence the judge doesn&#39;t feel like he or she needs the advice of a law professor thank you very much because they&#39;re a judge and they regard themselves as being experts in questions of law so to the lawyers who are appearing in the case regard themselves as being experts in questions of law you really do have to wonder what would be added by calling a professor to give expert evidence on questions of law the courts quite an quite capable of making those opinions for itself the only exception is a question of foreign law if it&#39;s necessary to consider a piece of foreign law in an Australian case it is acceptable to bring in an academic who is expert or a lawyer who is expert in that foreign law to explain the law to the court but then it will still be up to the court to apply that law to the current case so the court will not simply vacate its decision making responsibilities to the expert witness but it will take the expert witnesses advice about what the meaning of the foreign law is next thing we want to think about is what happens if you&#39;ve got two expert witnesses and their views conflict and this happens all the time as soon as one side finds out that the other side is bringing an expert witness to the party they&#39;ll want to bring their own the role of experts is to assist the court what this means is that it&#39;s open to the judge and open to the jury to believe one of the experts or the other expert or neither of them the court is not bound by the expert opinion the court is merely informed by the expert opinion so if you have two experts giving completely opposite views or very different views on the one case it&#39;s not necessary for the experts to of things amongst themselves both of those views can be put to the judge or the jury and the judge or the jury can then decide which evidence they believe in the same way that they&#39;re deciding which evidence they believe about everything else to do with the case ultimately the court is the decision-making authority not the expert but that leads to a really interesting question in criminal matters seeing criminal matters as soon as there&#39;s reasonable doubt you&#39;re supposed to get an acquittal and so there&#39;s an argument there to say well if you&#39;ve got two experts and they can&#39;t agree on how to interpret these facts doesn&#39;t that mean there&#39;s reasonable doubt that was a question that was asked in the Chamberlain case that we&#39;ve spoke about briefly last week this is the case relating to the death of Azaria Chamberlain that is rockin 1980 some of the experts said a dingo did it some of the experts said a dingo couldn&#39;t possibly have done it some of the experts said the bloodstains in the car were probably as Arya&#39;s some of the experts said the bloodstains in the car couldn&#39;t possibly have been hers now from one perspective you could say doesn&#39;t this automatically mean that there&#39;s reasonable doubt the High Court said no the High Court said that even if you have experts from two sides who are arguing completely the opposite case it is open to the jury to decide that the jury completely believes one expert and completely disbelieves the other expert and if the jury completely believes one expert and completely disbelieves the other expert then it&#39;s still possible for the jury to find that it is persuaded beyond reasonable doubt so never fall into the trap of thinking that just because you&#39;ve got conflict and expert testimony you&#39;ve automatically got reasonable doubt it doesn&#39;t work that way the final common law rule that I want to talk about in relation to expert witnesses is called the ultimate issue rule the ultimate issue rule effectively says that experts can&#39;t give evidence going to the ultimate issue to be determined by the court in other words if there&#39;s one core question did they do it the expert is not supposed to give an interpretation that would answer that question now this is an odd rule it seems very odd in principle for a couple of reasons one is that as we&#39;ve just said in relation to the Chamberlain case the judge or the jury is completely at liberty to ignore expert opinion evidence anyway so if the expert gave an opinion about how the case should be resolved and the judge will the jury disagreed with them then the judge or the jury could just make another decision anyway so it doesn&#39;t seem like there would be any harm by the expert giving an opinion on the ultimate issue more to the point expert opinion only tells us how to interpret the facts we&#39;ve already heard today that experts can&#39;t tell us they&#39;re not allowed to tell us how to interpret the law now we know from our basic process of legal reasoning that we identify the issues we identify the rule we apply the facts to the rule and then we conclude what that means is that if the expert opinion helps us work out the facts we&#39;ve still got to apply the law so even if the expert purports to give us information about the ultimate issue there&#39;s still going to be a process of legal reasoning to be done seems like the High Court agrees so now as we as long ago as 1989 the High Court was making pronouncements to the effect that it&#39;s doubtful whether there&#39;s now a rule precluding the expert witness from expressing a view on the ultimate issue the only thing is that neither the high court nor the statute have come out right and said the ultimate issue rule no longer exists so you need to know that it&#39;s out there but realistically it&#39;s not something that is likely to crop up regularly in terms of your actual practice and I suspect that the ultimate issue rule is also very unlikely to crop up in the exam for this subject the very last thing that I want to talk about in relation to expert witnesses relates to expert witness reports as they require under the statutory yar the statutory rules in Queensland we have adopted what are called the uniform Civil Procedure rules those of you who have done Civil Procedure will already know the you CPRS backwards forwards and sideways the you CPRS contain a range of rules which relate to the use of expert witness evidence what they require is that in Queensland in civil cases expert witnesses generally give their evidence by way of a report rather than by giving oral evidence okay this is for their evidence in chief so they provide the report before the case and the report is then disclosed to all other parties in the case so every witness that every expert witness that is called will provide a report and the report gets circulated to everybody now that&#39;s just X that&#39;s just evidence in chief it&#39;s then permissible for any side to indicate that they wish to cross-examine the expert in which case the expert will have to turn up to court on day and actually give evidence and be cross-examined based on the report that they&#39;ve written but it&#39;s not necessary to call them just to give their evidence in chief question is then what happens if they disagree and there&#39;s actually a very cool set of rules in terms of the you CPRS about how to deal with disagreement by expert witnesses if the experts disagree the court may direct them to hold a meeting between the experts if the experts are directed to meet then they&#39;ll be directed to identify areas of agreement and disagreement between them and they&#39;ll be directed to try to resolve the areas of disagreement they then have to come back to the court with another report and the report will express the areas that they agree upon and the areas that they disagree upon and the steps that they&#39;ve taken to try to resolve those areas of disagreement this means that the court&#39;s time is not wasted any more than necessary by experts who are just playing an academic dueling game it means that when the court proceeds on the basis of expert evidence as much as possible it&#39;s proceeding on the basis of agreed expert evidence which both of the experts which have been called by both of the sides are as comfortable as possible with it&#39;s a very sensible way to reduce the amount of time that cases take up are in the courtroom so that&#39;s opinion evidence in the lecture today we&#39;ve looked at how opinion evidence is different from direct evidence we&#39;ve looked at expert and non expert opinion evidence we&#39;ve looked at the fact that non expert opinion evidence is generally not admissible but it can be admissible if it&#39;s just a way for the witness to explain their observations we&#39;ve looked at how somebody can be identified as an expert witness and what the limitations are on giving expert opinion evidence we&#39;ve talked about the fact that the judge and jury are perfectly entitled not to follow expert opinion evidence once it&#39;s given to them because ultimately the judge and the jury are the judge and the jury not the expert opinion not the expert giving an opinion and finally we&#39;ve looked at how the statutory rules affect are the giving of expert opinion evidence this week I&#39;m suggesting that you have a look at two final pieces of Hollywood the first is from the comedy movie my cousin Vinnie which is an unusual comedy movie mainly because Marissa Tomei the main character that you&#39;ll see in the clip that I&#39;m suggesting actually won an Oscar as Best Supporting Actress for this performance which is highly unusual for a comedy movie but it&#39;s it&#39;s an extremely good example of how a person without formal knowledge might demonstrate themselves to be sufficiently expert to give expert opinion evidence and even better they conduct of wadiya and they identify it as a variety which is something that I wouldn&#39;t have expected to see in Hollywood the second one the second clip is another example of expert opinion evidence and this is from one of the two absolute classic courtroom movies that you will ever see one of them is 12 Angry Men you&#39;ve done an assignment on the other one was made it also in the early 1960s late 1950s and this movie is called inherit the wind this is a movie about the Scopes Monkey Trial in Indiana when a school teacher was taken to court for teaching evolution as an alternative to creation in the schoolroom and it&#39;s a wonderful movie and a wonderful scene I hope that you enjoy both of the scenes from these movies and that the questions help to bring expert opinion evidence as we&#39;ve been discussing it into focus finally that brings us to the end of the substantive material for this course in evidence and proof next week we&#39;re going to have a review session a review an application session to try and pull together what have been really quite a varied set of concepts that we&#39;ve looked at over the last 11 weeks and the last 11 lectures but this does bring us to the end of the substantive material I do hope that at this point you have you feel you have a strong and confident understanding of the material that we&#39;ve covered and I&#39;ll look forward to applying it in a more practical way when we resume next week

get everybody and welcome to week 11 of laws one three zero one zero evidence and proof I&amp;#39;m Anthony Mara knack this is the last week of substantive material for this course before we have a review week next week and in this last week we&amp;#39;re going to be looking at opinion evidence which is the final key area of evidence law that we haven&amp;#39;t yet covered what we&amp;#39;re going to be doing this week is first of all distinguishing opinion evidence from from direct observation evidence and then we&amp;#39;ll talk about the two types of opinion evidence which are non expert opinion evidence and expert opinion evidence we&amp;#39;ll look first at non expert opinion evidence and how it can and can&amp;#39;t be used and then we&amp;#39;ll look at expert opinion evidence in somewhat more detail we&amp;#39;ll talk about who is an expert what sorts of things they can talk about and what they have to do in order to make expert opinion evidence admissible in the court so what is opinion evidence will opinion evidence as we said very early on in this course is evidence that is based on an interpretation or an inference founded on facts so in other words a person is not simply describing facts to the court they&amp;#39;re actually interpreting those facts or trying to say what they think those facts mean as well generally speaking it&amp;#39;s the courts role to interpret facts remember the witness is only there as a delivery system for X for evidence the court is only interested in a witness because the witness can provide the court with facts generally it&amp;#39;s the courts job to then take those facts and having had positions put to it by both sides by the lawyers of both sides the court will construct a narrative out of those facts which says what the Court believes actually happened as a result as a matter of course the courts not terribly interested in the opinions of other people the court doesn&amp;#39;t need to have witnesses to come before the court and explain to the court how it should interpret the the role of witnesses is simply to provide the facts so that&amp;#39;s the general rule because this is evidence law we now have to look at all of the exceptions there are two general types of opinion evidence the first is non expert opinion evidence non expert opinion evidence or lay opinion evidence is given by people who have no particular expertise they&amp;#39;re just people like you and me who happen to see something and who are asked what they saw in most cases a non expert is not going to be any more capable than the judge or the jury of placing an interpretation on facts so generally speaking the non experts role is to say what they saw give their testimony based on their observations with their five senses and leave it to the court to make its own interpretations the other sort is expert opinion evidence in expert opinion evidence inferences are attached to facts by an expert who is capable of drawing inferences that the court itself cannot these are people who have expertise through study or experience which allows them to see a set of facts and draw inferences that are only going to be known to people with that expertise the Court recognizes that expertise and reaches out to it to help the court to interpret the facts which have been placed before it so that&amp;#39;s the difference between the two let&amp;#39;s start with non expert opinion evidence there are really two types the first type is where the witness simply gives an opinion to be quite blunt about it the court doesn&amp;#39;t care so if a witness was asked about a let&amp;#39;s say an accused person do you think he has good hygiene habits and the witness said no he usually smells and doesn&amp;#39;t seem to look after himself very well at all and I think he&amp;#39;s a bit of a grub that&amp;#39;s all opinion nobody cares the courts not interested in the the witness&amp;#39;s opinion about about the accused person they&amp;#39;re only witnesses in their observation so they&amp;#39;re only interested in their observation if they limited themselves to saying in my observation he generally seemed quite unkempt they might sneak away with that but generally speaking a witness just giving an opinion is neither here nor there it&amp;#39;s pointless testimony the second type of opinion though is an observational opinion and an observational opinion is usually allowed because an observational opinion simply enables the witness to tell their story properly the example that I&amp;#39;ve given in the slide there shows I think reasonably well what an observational opinion is you ask a witness a question and the answer is I saw my car in the car park now at first glance to anyone who&amp;#39;s not a lawyer that sounds pretty much like a statement of a fact I saw my car in the car park but it&amp;#39;s not is it it&amp;#39;s a statement of opinion and interpretation based on facts that were observed if the person kept it just to the absolute facts then what they would say is something on lines of I possess a dark blue Subaru Impreza with license plates one two three ABC I went into the car park and identified that in the car park was a dark blue Subaru Impreza bearing the license plates one two three ABC I pressed the button on my key which unlocks the vehicle which unlocks my car and only my car and when I press the button on that key but the doors unlocked of the Subaru Subaru Impreza one two three ABC which was left in the car park now that&amp;#39;s a statement of sheer fact and what the witness really means is I saw my car in the car park it makes much sense to willette much more sense to allow those basic levels of interpretation to allow the witness to tell their story it&amp;#39;s the same as the example we gave earlier in this semester where the witness says I heard a bang outside now if you had a witness who says I heard a bang outside your follow-up question might have been what do you think that bang sounded like a gunshot or a car door or somebody dropping something and the witness might say well it sounded to me like a car door slamming that&amp;#39;s an opinion but it&amp;#39;s an opinion that is really an interpretation of their observation it makes no sense to say that is an opinion what it really is is an opinion that helps us to understand how they interpreted the facts around them and how they might have reacted to those facts around them a person who hears a car door slamming outside their house is likely to react very differently to a person who hears a shot being fired immediately outside their house so for those observational interpretations we almost treat them like their observations and the court doesn&amp;#39;t mind them what the court won&amp;#39;t allow is once those opinions start to get to the point where they&amp;#39;re no longer assisting the witness to give their evidence the witness is simply shooting off at the mouth and giving their opinions to the court so you need to distinguish between the two under the common law non expert opinion is generally inadmissible the only time it is admissible is if it is necessary to confer the witness to convey what it is that they saw or heard and if the evidence is about something for which a normal person would normally be able to give an inference the examples that are given therein lift go and Jackson are things like age we can normally tell whether somebody is old or young sobriety speed time distance whether handwriting the identity of a person whether somebody seems to be healthy or what they seems to be their emotional state these are a number of examples that were given in with co-counsel on Jackson so basic normal things that we actually can see are interpretations and inferences but which is so closely based on facts that it really makes no sense to talk about the facts without also talking about the inferences so that&amp;#39;s non expert opinion that&amp;#39;s pretty easy most of this lecture is going to focus on expert opinion which is much more complicated expert opinion happens when the court needs somebody who has a greater level of expertise to explain to the court what sorts of inferences should be drawn from particular facts and in this in this case I&amp;#39;m going I&amp;#39;ve quoted for you the oldest piece of evidence law that that I routinely use and that&amp;#39;s from the case Buckley and Thomas which was decided in 1554 where the court said in matters that arise in the law which concern other Sciences or faculties we commonly apply for the aid of that science or faculty this is an honorable and commendable thing in our law so in other words it is honorable and commendable that the law is prepared to reach out to other areas of knowledge in order to ensure that the law has sufficient knowledge before it to make a just opinion now of course that leads us to a number of interesting questions the first one is who is an expert who&amp;#39;s going to count as an expert for the purpose of giving expert evidence well the first step is we have to work out whether there is a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience so in other words before you can be an expert in something there has to be something to be expert in the case that we&amp;#39;re going to focus on here is ozland in the crown now this was a case where a person who was accused of criminal offenses was raising a defense related to what&amp;#39;s now known as battered wives syndrome and in order to demonstrate to the court that this syndrome was actually a real thing they proposed to call an expert witness and the court had to decide whether battered wives syndrome was a sufficiently organized body of knowledge that somebody could actually be expert in it and eventually decided that yes this was now a distinct area of psychology in which it was possible to have expertise there will be some areas of humanity in which it might be quite difficult to demonstrate that a person is regarded as an expert an example a very curious example that was given to me is the example of lovemaking that&amp;#39;s something that&amp;#39;s very widespread but it would actually be very difficult to work out how somebody could be determined to be an expert or a non expert in that area if you if you ask any teenage boy he&amp;#39;ll probably profess to a certain level of expertise but in reality there&amp;#39;s no sufficiently organized level of knowledge or experience around that particular activity for anybody to genuinely claim that they could be broadly recognized within the community as being an expert so we start by saying is this an area of knowledge in which a person might claim expertise if it is we then say is the person who&amp;#39;s claiming to be an expert actually recognized within that body of knowledge as being an expert and there&amp;#39;s no specific formula that can be applied to work out who is an expert you can become an expert through study and through the gaining of formal knowledge or you can become an expert through sheer practical effort the exact the the the most common example of the the latter type is the crown and Harrison 1997 case in which the expertise of an Aboriginal tracker was held to make that person an expert for the courts purposes because it was held that that the tracking of animals and people in the Australian bush land was a sufficiently organized body of knowledge this is something that has been handed down within indigenous communities from generation to generation and that there was a a sufficient understanding of that body of knowledge for the court to be able to recognize that the witness was regarded as an expert so that&amp;#39;s how we determine who is an expert first we ask is there a sufficient body of knowledge to acts we be an expert in anything and then we ask is the actual witness who&amp;#39;s being brought before the court regarded within that body as being an expert so that gets your expert onto the stand they haven&amp;#39;t actually given any evidence yet they&amp;#39;ve just reached the stand the next thing we have to think about is what&amp;#39;s the expert witness going to do when they get there you see we are asking the expert witness to give us inferences and interpretations based on facts that means we have to think carefully about what are the facts that the the witness is going to be making their opinions based on we can look at a case from the late 1940s called bug and day now in bug and day a mechanic was called to give expert evidence in relation to it to a motor vehicle crash and the expert gave evidence of what speed he assessed the vehicles to have been traveling at it later emerged that the expert had not been told a number of key facts that were necessary to make that assessment for instance he was not told the mass of the vehicles that were involved in the collision now unless you know the mass of two things that collide is going to be very difficult to assess what speed they might have been colliding at because obviously a big heavy thing will do a lot more damage even at slow speed than a light flimsy thing so given that the correct facts had not been given to the expert the experts opinion was ruled to be of no assistance to the court so the court will always want to know what facts were the experts opinion based on second thing is those facts then need to be capable of being proven in evidence there&amp;#39;s no point getting an expert to give an opinion that&amp;#39;s based on a bunch of facts if we then find that those facts are all just kind of made up by the lawyers that those facts don&amp;#39;t actually have any any real relevance to the real case at hand if those facts are basically hypothetical then the expert is going to give a hypothetical opinion but it&amp;#39;s not actually going to be useful to assist the court to make interpretation of the facts in this case so if a fact is in issue it has to be demonstrated by evidence so you can&amp;#39;t give a witness give an expert opinion get an expert witness a bunch of facts and say please interpret these and then take that interpretation into the court unless you&amp;#39;re also going to be prepared to prove the facts that you&amp;#39;ve asked the whip in the expert to base their opinion on finally the witness has to be capable of explaining to the court how they arrived at their opinion if they can&amp;#39;t explain to the court how they arrived at their opinion then why should the court believe that their opinion has any validity this is why a good expert witness is worth their weight in gold and why they can command some astronomical fees to appear in court because the fundamental skill of a great expert witness is to take complicated concepts within their field of knowledge and reduce them to a level that is comprehensible for people who lack that knowledge and experience they need to be able to explain how they reached what might be a very complicated final position in simple laypersons terms and that&amp;#39;s a very difficult skill there are some other rules that we need to apply in relation to expert opinion evidence first of those is that expert opinion experts are not entitled to give opinions on questions of law so you&amp;#39;re not entitled to bring in a professor of law your local University or local law school and get them up on the stand and ask them to interpret a particular piece of statute or a particular piece of case law that&amp;#39;s relevant to the case at hand and the reason is that if you think about that case from 1554 that I mentioned a few moments ago it says that the law will reach out to other areas of knowledge in order to obtain expert opinion evidence the judge doesn&amp;#39;t feel like he or she needs the advice of a law professor thank you very much because they&amp;#39;re a judge and they regard themselves as being experts in questions of law so to the lawyers who are appearing in the case regard themselves as being experts in questions of law you really do have to wonder what would be added by calling a professor to give expert evidence on questions of law the courts quite an quite capable of making those opinions for itself the only exception is a question of foreign law if it&amp;#39;s necessary to consider a piece of foreign law in an Australian case it is acceptable to bring in an academic who is expert or a lawyer who is expert in that foreign law to explain the law to the court but then it will still be up to the court to apply that law to the current case so the court will not simply vacate its decision making responsibilities to the expert witness but it will take the expert witnesses advice about what the meaning of the foreign law is next thing we want to think about is what happens if you&amp;#39;ve got two expert witnesses and their views conflict and this happens all the time as soon as one side finds out that the other side is bringing an expert witness to the party they&amp;#39;ll want to bring their own the role of experts is to assist the court what this means is that it&amp;#39;s open to the judge and open to the jury to believe one of the experts or the other expert or neither of them the court is not bound by the expert opinion the court is merely informed by the expert opinion so if you have two experts giving completely opposite views or very different views on the one case it&amp;#39;s not necessary for the experts to of things amongst themselves both of those views can be put to the judge or the jury and the judge or the jury can then decide which evidence they believe in the same way that they&amp;#39;re deciding which evidence they believe about everything else to do with the case ultimately the court is the decision-making authority not the expert but that leads to a really interesting question in criminal matters seeing criminal matters as soon as there&amp;#39;s reasonable doubt you&amp;#39;re supposed to get an acquittal and so there&amp;#39;s an argument there to say well if you&amp;#39;ve got two experts and they can&amp;#39;t agree on how to interpret these facts doesn&amp;#39;t that mean there&amp;#39;s reasonable doubt that was a question that was asked in the Chamberlain case that we&amp;#39;ve spoke about briefly last week this is the case relating to the death of Azaria Chamberlain that is rockin 1980 some of the experts said a dingo did it some of the experts said a dingo couldn&amp;#39;t possibly have done it some of the experts said the bloodstains in the car were probably as Arya&amp;#39;s some of the experts said the bloodstains in the car couldn&amp;#39;t possibly have been hers now from one perspective you could say doesn&amp;#39;t this automatically mean that there&amp;#39;s reasonable doubt the High Court said no the High Court said that even if you have experts from two sides who are arguing completely the opposite case it is open to the jury to decide that the jury completely believes one expert and completely disbelieves the other expert and if the jury completely believes one expert and completely disbelieves the other expert then it&amp;#39;s still possible for the jury to find that it is persuaded beyond reasonable doubt so never fall into the trap of thinking that just because you&amp;#39;ve got conflict and expert testimony you&amp;#39;ve automatically got reasonable doubt it doesn&amp;#39;t work that way the final common law rule that I want to talk about in relation to expert witnesses is called the ultimate issue rule the ultimate issue rule effectively says that experts can&amp;#39;t give evidence going to the ultimate issue to be determined by the court in other words if there&amp;#39;s one core question did they do it the expert is not supposed to give an interpretation that would answer that question now this is an odd rule it seems very odd in principle for a couple of reasons one is that as we&amp;#39;ve just said in relation to the Chamberlain case the judge or the jury is completely at liberty to ignore expert opinion evidence anyway so if the expert gave an opinion about how the case should be resolved and the judge will the jury disagreed with them then the judge or the jury could just make another decision anyway so it doesn&amp;#39;t seem like there would be any harm by the expert giving an opinion on the ultimate issue more to the point expert opinion only tells us how to interpret the facts we&amp;#39;ve already heard today that experts can&amp;#39;t tell us they&amp;#39;re not allowed to tell us how to interpret the law now we know from our basic process of legal reasoning that we identify the issues we identify the rule we apply the facts to the rule and then we conclude what that means is that if the expert opinion helps us work out the facts we&amp;#39;ve still got to apply the law so even if the expert purports to give us information about the ultimate issue there&amp;#39;s still going to be a process of legal reasoning to be done seems like the High Court agrees so now as we as long ago as 1989 the High Court was making pronouncements to the effect that it&amp;#39;s doubtful whether there&amp;#39;s now a rule precluding the expert witness from expressing a view on the ultimate issue the only thing is that neither the high court nor the statute have come out right and said the ultimate issue rule no longer exists so you need to know that it&amp;#39;s out there but realistically it&amp;#39;s not something that is likely to crop up regularly in terms of your actual practice and I suspect that the ultimate issue rule is also very unlikely to crop up in the exam for this subject the very last thing that I want to talk about in relation to expert witnesses relates to expert witness reports as they require under the statutory yar the statutory rules in Queensland we have adopted what are called the uniform Civil Procedure rules those of you who have done Civil Procedure will already know the you CPRS backwards forwards and sideways the you CPRS contain a range of rules which relate to the use of expert witness evidence what they require is that in Queensland in civil cases expert witnesses generally give their evidence by way of a report rather than by giving oral evidence okay this is for their evidence in chief so they provide the report before the case and the report is then disclosed to all other parties in the case so every witness that every expert witness that is called will provide a report and the report gets circulated to everybody now that&amp;#39;s just X that&amp;#39;s just evidence in chief it&amp;#39;s then permissible for any side to indicate that they wish to cross-examine the expert in which case the expert will have to turn up to court on day and actually give evidence and be cross-examined based on the report that they&amp;#39;ve written but it&amp;#39;s not necessary to call them just to give their evidence in chief question is then what happens if they disagree and there&amp;#39;s actually a very cool set of rules in terms of the you CPRS about how to deal with disagreement by expert witnesses if the experts disagree the court may direct them to hold a meeting between the experts if the experts are directed to meet then they&amp;#39;ll be directed to identify areas of agreement and disagreement between them and they&amp;#39;ll be directed to try to resolve the areas of disagreement they then have to come back to the court with another report and the report will express the areas that they agree upon and the areas that they disagree upon and the steps that they&amp;#39;ve taken to try to resolve those areas of disagreement this means that the court&amp;#39;s time is not wasted any more than necessary by experts who are just playing an academic dueling game it means that when the court proceeds on the basis of expert evidence as much as possible it&amp;#39;s proceeding on the basis of agreed expert evidence which both of the experts which have been called by both of the sides are as comfortable as possible with it&amp;#39;s a very sensible way to reduce the amount of time that cases take up are in the courtroom so that&amp;#39;s opinion evidence in the lecture today we&amp;#39;ve looked at how opinion evidence is different from direct evidence we&amp;#39;ve looked at expert and non expert opinion evidence we&amp;#39;ve looked at the fact that non expert opinion evidence is generally not admissible but it can be admissible if it&amp;#39;s just a way for the witness to explain their observations we&amp;#39;ve looked at how somebody can be identified as an expert witness and what the limitations are on giving expert opinion evidence we&amp;#39;ve talked about the fact that the judge and jury are perfectly entitled not to follow expert opinion evidence once it&amp;#39;s given to them because ultimately the judge and the jury are the judge and the jury not the expert opinion not the expert giving an opinion and finally we&amp;#39;ve looked at how the statutory rules affect are the giving of expert opinion evidence this week I&amp;#39;m suggesting that you have a look at two final pieces of Hollywood the first is from the comedy movie my cousin Vinnie which is an unusual comedy movie mainly because Marissa Tomei the main character that you&amp;#39;ll see in the clip that I&amp;#39;m suggesting actually won an Oscar as Best Supporting Actress for this performance which is highly unusual for a comedy movie but it&amp;#39;s it&amp;#39;s an extremely good example of how a person without formal knowledge might demonstrate themselves to be sufficiently expert to give expert opinion evidence and even better they conduct of wadiya and they identify it as a variety which is something that I wouldn&amp;#39;t have expected to see in Hollywood the second one the second clip is another example of expert opinion evidence and this is from one of the two absolute classic courtroom movies that you will ever see one of them is 12 Angry Men you&amp;#39;ve done an assignment on the other one was made it also in the early 1960s late 1950s and this movie is called inherit the wind this is a movie about the Scopes Monkey Trial in Indiana when a school teacher was taken to court for teaching evolution as an alternative to creation in the schoolroom and it&amp;#39;s a wonderful movie and a wonderful scene I hope that you enjoy both of the scenes from these movies and that the questions help to bring expert opinion evidence as we&amp;#39;ve been discussing it into focus finally that brings us to the end of the substantive material for this course in evidence and proof next week we&amp;#39;re going to have a review session a review an application session to try and pull together what have been really quite a varied set of concepts that we&amp;#39;ve looked at over the last 11 weeks and the last 11 lectures but this does bring us to the end of the substantive material I do hope that at this point you have you feel you have a strong and confident understanding of the material that we&amp;#39;ve covered and I&amp;#39;ll look forward to applying it in a more practical way when we resume next week

Transcript for:Week 11: Opinion Evidence - LAWS13010: Evidence and Proof

Transcript for:
Week 11: Opinion Evidence - LAWS13010: Evidence and Proof