English Law – Expert Evidence

English Law – Expert Evidence

“The traditional English way of deciding contentious expert issues is for a
judge to decide between two contrary views. This is not necessarily the
best way of achieving a just result. The judge may not be sure that either
side is right, especially if the issues are very technical or fall within an area
in which he himself has no expertise.”
(Woolf Report, Access to Justice
(1996))
“In the context of disputed expert evidence … what was required in this
case was no different to that which obtains, for example, when pathologists
disagree about the cause of death in a case of alleged strangulation. An
argument whether the hyoid bone was fractured before death (supporting
the conclusion of strangulation) or whether it occurred post mortem,
perhaps during the course of the autopsy itself (which would discount
strangulation), is commonplace. … And even if the experts disagree about
whether it was indeed fractured, that is a question for the jury. … Evidence
of this kind must be dealt with in accordance with the usual principle that it
is for the jury to decide between the experts, by reference to all the
available evidence, and that it is open to the jury to accept or reject the
evidence of the experts on either side.?
(Judge LJ in R v Kai-Whitewind [2005] EWCA Crim
1092)
Critically examine these two statements. Might the use (or greater use) of
‘single joint experts’ or court appointed experts help to reduce some at
least of the existing difficulties?

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