There should be a new reliability-based admissibility test for expert evidence in criminal proceedings. That’s according to the Law Commission.
In a recent report the commission called for a proper framework in criminal proceedings for screening expert evidence at the admissibility stage. That would the commission suggested also encourage higher standards among expert witnesses, and the specialists on whom they rely, resulting in expert evidence of greater reliability being tendered for admission.
In a criminal trial, a jury or magistrates’ court is required to determine disputed factual issues. Experts in a relevant field are often called as witnesses to help the fact-finding body understand and interpret evidence with which that body is unfamiliar.
The current judicial approach to the admissibility of expert evidence in England and Wales is one of laissez-faire, according to the commission. Too much expert opinion evidence is admitted without adequate scrutiny because no clear test is being applied to determine whether the evidence is sufficiently reliable to be admitted. This problem is exacerbated in two ways:
First, because expert evidence (particularly scientific evidence) will often be technical and complex, jurors will understandably lack the experience to be able to assess the reliability of such evidence. There is a danger that they may simply defer to the opinion of the specialist who has been called to provide expert evidence.
Secondly, in the absence of a clear legal test to ensure the reliability of expert evidence, advocates do not always cross-examine experts effectively to reveal potential flaws in the experts’ methodology, data and reasoning. Juries may therefore be reaching conclusions on the basis of unreliable evidence. This conclusion is confirmed by a number of miscarriages of justice in recent years.
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