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Consultation Paper on Expert Evidence - Law Reform Commission

Consultation Paper on Expert Evidence - Law Reform Commission

Consultation Paper on Expert Evidence - Law Reform

CONSULTATION PAPER EXPERT EVIDENCE (LRC CP 52 – 2008)

  • Page 2 and 3: www.lawreform.ie
  • Page 4 and 5: LAW REFORM COMMISSION‘S ROLE The
  • Page 6 and 7: LAW REFORM RESEARCH STAFF Director
  • Page 8 and 9: CONTACT DETAILS Further information
  • Page 10 and 11: TABLE OF CONTENTS Table of Cases xi
  • Page 12 and 13: C Principal Recognised Duties of Ex
  • Page 14 and 15: (1) Dedicated Regulatory Body for E
  • Page 16 and 17: Cassegrain Confetti Records v Warne
  • Page 18 and 19: Liddell v Middleton (1996) PIQR 36
  • Page 20 and 21: R v Heath (1744) 18 Howell, State T
  • Page 22 and 23: VW v DPP Unreported, Supreme Court
  • Page 24 and 25: 4. The ultimate issue, whether of c
  • Page 26 and 27: insufficient willingness to strip o
  • Page 28 and 29: to make their submissions in writin
  • Page 30 and 31: 1.05 This chapter concludes by summ
  • Page 32 and 33: proof, but was not in fact formally
  • Page 34 and 35: lawyers in the trial process which
  • Page 36 and 37: Outlawries, Special Juries and the
  • Page 38 and 39: 1.29 Gradually, however, parties we
  • Page 40 and 41: (4) Juries of Foreigners 1.34 The t
  • Page 42 and 43: necessary. Oldham cites Sayles earl
  • Page 44 and 45: obtain a rule for a special jury, a
  • Page 46 and 47: 1.52 There were many similarities b
  • Page 48 and 49: E Court Experts and Expert Witnesse
  • Page 50 and 51: the modern system of deciding the c
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    ‗expert witness‘ developed as a

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    as a witness for either party. 127

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    1.84 Much discussion on the issue w

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    up with contradictory definitions,

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    H Conclusion 1.98 Today, the opinio

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    - to draw inferences of fact, form

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    2.14 These categories however undou

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    (ii) Patent Cases 2.26 Expert witne

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    (v) Technical or Scientific Termino

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    Articles 5 and 6 of the European Co

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    evidence than that of a police offi

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    (ii) England 2.61 In England, the o

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    should not be entitled to give an a

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    2.79 Megarry J. in English Exporter

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    (e) Hearsay and Expert Evidence: Ir

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    ―[W]e point out that the key evid

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    2.103 This case shows a return to t

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    2.114 The Court held that while the

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    2.125 Much judicial commentary exis

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    This is particularly so in criminal

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    The Commission recognised that matt

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    defendant was of limited intellectu

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    2.160 In the ALRC‘s Issues

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    However, the Commission also acknow

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    2.187 It has already been explained

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    2.200 One area where the ultimate i

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    court, not due to the fact that it

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    departed from the most commonly und

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    evidence on matters on which the ul

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    2.240 This interpretation of the ul

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    cannabis. ―An accused, who admits

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    opinion does not go to the facts of

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    sanity of a testator) the evidence

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    occasions where they had felt that

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    information to the jury to enable t

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    ―…at the end of the day it seem

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    2.299 The evidence envisaged under

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    accepted in general terms in Irelan

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    from which it purported to belong,

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    ―First, are the studies or data u

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    2.332 However, Breyer J did find th

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    appellant argued that such evidence

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    (iii) Victoria 2.345 In contrast wi

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    ―There is no single test which ca

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    (d) Return to Traditional Qualifica

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    2.371 It is apparent from this that

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    this area, and insist that any evid

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    (b) Advantages - Reasons to Introdu

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    (d) Requisite Contents and Elements

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    It may occur that a case arises whe

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    which prove to be negligently follo

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    properly be made of it because of o

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    field of expertise, and sufficient

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    3.15 This highlights that not only

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    deciding on the competency of an in

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    one which is considered by the cour

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    issue is within their range of expe

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    ―Mr Dawson was cross-examined as

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    court but they would be prevented f

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    What is the coefficient of the expa

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    (4) Relationship between an Expert

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    3.81 However, this approach was hel

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    general trial process. This may not

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    (3) Summary of Main Recognised Duti

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    (c) Duty to Give Well-Balanced, Wel

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    prosecution sought to rely on the e

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    tribunal. It does not mean that an

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    ―It is of importance to the admin

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    duty owed by the expert to the cour

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    3.145 On appeal this evidence was c

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    action. The Court allowed the defen

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    into evidence. The significance of

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    encouraged, 132 except in limited c

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    2 of PD35, outlines the necessary r

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    impartiality and transparency, 157

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    procedure as recommended by Auld J

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    duty owed to the person retaining t

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    the role and duties of an expert wi

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    in this code, particularly those ow

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    3.214 Furthermore, the expert had f

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    stating in the introduction that it

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    detailed document which has a very

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    traps for experts during cross exam

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    4 CHAPTER 4 ADVERSARIAL BIAS, PARTI

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    4.08 Expert witnesses might also fi

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    (2) Financial Interest 4.17 An expe

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    4.25 For example, in the infamous A

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    particular theory in their field of

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    4.42 Even experts within a particul

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    4.50 As a result, the court conclud

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    independent from law enforcement an

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    ―I wouldn‘t be testifying if I

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    ―A man may go, and does sometimes

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    adopted and the consequential recom

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    espouse the cause of those instruct

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    expert testimony, view their role i

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    evidence in respect of which the tr

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    explained that the purpose of allow

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    ―Since expert bias currently aris

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    Commission also provisionally recom

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    5.08 However, other criticisms abou

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    5.18 There is the possibility that

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    5.29 Such a rule would be beneficia

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    thereby encourage the close judicia

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    sidetracked by secondary matters su

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    terms and conditions of appointment

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    5.65 Where there is confusion betwe

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    (i) Ireland 5.76 In Britain, contin

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    considered to be unlawful. Lord Phi

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    that it would be preferable to intr

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    5.103 It is submitted that experts

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    (4) The content of the discussion b

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    (b) the expert does not answer that

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    plaintiff consented to the defendan

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    forthcoming and where needed in ord

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    a full statement of all items of sp

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    disclosure of all reports which con

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    4C (1) (a) a list of any further wi

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    elements that must be included, whi

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    training courses for their members

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    out tests relied on by the expert i

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    (d) if applicable, that a particula

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    The terms and conditions of the app

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    5.209 If this was not the case, in

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    ather than two experts, both of whi

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    (3) The expert shall attend so much

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    (2) The parties wishing to submit t

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    efer to the learning of the Europea

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    should be encouraged to deal with i

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    (I) Parties’ Single Expert 128 5.

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    of providing that additional expert

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    to appoint, the instructions to be

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    the reduction in time spent giving

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    ―…it is slightly mysterious tha

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    summary. When all this is completed

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    5.308 The court is composed of thre

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    special Revenue Court composed of e

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    significant. The Commission therefo

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    it is an opinion based hopefully on

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    and accreditation would be a necess

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    6.26 Many English law schools, 8 as

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    encourage the use of accredited exp

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    6.41 Also similar to the United Kin

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    6.48 Set up in 1985, the Irish Nati

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    (5) Training for Judiciary and Othe

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    issues such potential legislative a

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    categories of membership of the soc

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    investigation of such claims and th

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    6.102 Interestingly, there have bee

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    contents of a letter which commente

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    veracity of the statistics he cited

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    claims and there should be a fully

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    D Expert Witness Immunity from Civi

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    6.150 He rejected the plaintiff‘s

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    6.158 The defendant argued that thi

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    of the evolved jurisprudence in tha

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    (2) England and Wales 6.175 The exi

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    multiplicity of actions in which th

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    expert did not give evidence in the

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    was held that his advice constitute

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    lanket immunity. First, the adminis

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    6.216 At the outset, it must be ack

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    immunity, Reid J went on to argue t

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    6.234 However, it has been recognis

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    6.245 It has been held that imperso

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    evidence, causes significant expens

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    7.09 The Commission provisionally r

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    instructing parties. The Commission

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    familiarisation training for expert

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