Expert evidence
Expert evidence is used to provide information to the court, which is likely to be outside of the knowledge of the magistrates, judge or jury. Opinion evidence can be given if the expert is qualified to provide such an opinion.
Duty of an expert witness
An expert is under a duty to help the court by giving opinion which is objective and unbiased in relation to matters within their expertise. The duty is one which is owed to the court rather than the party who is providing the instructions.
The Criminal Procedure Rules require an expert to provide certain information such as any potential conflict, an appeal which has been allowed due to a deficiency in their evidence, convictions or adverse judicial comment.
Will an expert always be heard?
Applications can be made to exclude expert evidence if it is argued its prejudicial effect outweighs its probative value. The courts have also indicated a willingness to exclude the evidence if it is insufficiently helpful to a jury in reaching its conclusions. The court can also reject evidence, for example, if it decides that the witness has not properly established his independence or has not complied with his duty to the court.
We will not hesitate to challenge experts called to give evidence by the prosecution if there is a prospect of exclusion.
What types of expert are used in criminal cases?
There is a wide range of relevant expertise in criminal law. This could include forensics such as DNA and fingerprints or footwear marks, facial recognition where identification from a still or CCTV is in issue, medical experts in respect of injuries, psychiatric or psychological reports, autopsies or gait analysis.
How do you find an expert?
We have a register of tried and tested experts in every discipline. An expert witness is not just an expert in their field, they have additional skills such as report writing and experience of giving evidence in court.
It is important, therefore, to get the right witness for your case and we can do this for you.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Inadmissible confessions
The 2015 documentary series Making a Murderer follows the story of two men from Wisconsin whose confessions helped to convict them of sexually assaulting and murdering a woman.
One of the convicted was an impressionable teenager called Brendan Dassey. Dassey’s conviction was overturned in 2016 (confirmed on appeal in 2017) on the basis that his ‘confession’ to the murder was coerced by police officers who exploited his vulnerable nature.
What is the law in the England and Wales?
Provisions in the Police and Criminal Evidence Act 1984 allow courts to reject confessions of this kind on the basis that they were obtained ‘oppressively’ or are unreliable. The relevant statutory provisions are ss. 76(2)(a) and (b) and 77 of the Act.
What does “oppressive” mean?
The term ‘oppressive’ has caused problems for the courts. It seems to be agreed that oppression implies some “impropriety” which compromises the confession’s veracity: Fulling [1987] QB 426.
Uncertainty exists, however, as the same sort of behaviour in different cases has led to the confession being excluded in one but not the other: Paris (1993) 97 Cr App R 99; L [1994] Crim LR 839.
What about unreliability?
Aside from oppression, confessions may be excluded on the basis of unreliability. This unreliability may come about via “anything said or done” or something problematic concerning the circumstances in which the ‘confession’ was made.
An important point to note is that the suspect’s own conduct cannot undermine a confession: Goldenberg (1988) 88 Cr App R 285.
Another important reason to exclude a confession on the basis of unreliability is where the suspect is mentally unfit. There is a separate section of the 1984 Act dealing with this: section 77. In particular, this seeks to protect suspects who may be suggestible and may simply go along with police officers’ leading questions about an alleged offence.
Deciding on the admissibility of confessions
The actual process for deciding whether a confession can be admitted is a ‘voir dire’. That is essentially a mini-trial within or alongside the main trial. Section 76(2) of PACE gives guidance on this point.
The prosecution must prove to the criminal law standard that the confession was not obtained in the way alleged by the defence, otherwise it will be excluded. And, although there is some disagreement, the standard position appears to be that the defendant’s evidence at the voir dire cannot be admitted during any trial for the substantive offence: Wong Kam-ming [1980] AC 247.
How we can help
If you are concerned about the conduct of police officers and/or the reliability of a confession made while in custody, please contact John Howey on 020 7388 1658, or jhowey@jfhlaw.co.uk.
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