Expert Evidence

 Introduction:

  According to article 59 of qanune shahadat order 1984, expert witness is the preson who is specially expert in forign law, technical and professional matter or art or corruption in result with identity, hand writing or finger impression etc. an expert witness is one who is capable of deducing opinion from knowlede skill and opinion or from the facts observed by him or noticed by others. medical expert will be the person skill and adept in any branch of medicine. Opinion of medical expert on the point of  medical science is relevent and admissible evidence under article 59 of qanoone shadat. a medi-co legal witness  can act both as an ordinary or as an expert. when he states, what he has seen or described any wound on the body or as its situation and measurement etc. He will be a common witness, But when he states, death was due to shock or as a result of injuries described, anti-mortem or  post mortem and homicidal accidental or suicidal in nature or when he opines the injury was sufficient to cause death in ordinary course of nature,he will  be an expert witness. a medico-legal expert should be relevent reliablr clear exert and he should give definite opinon with reasons and his answers shoud be to the point brief and precise.

the expert witness is the  prime source of evidence upon which legal decisions are founded. his effective use in the opinion of justice is absolute necessity for peaceful society. the expert witness alone does not prove or disprove the case for prosecution. the court of law will give due consideration to it in the context of other corroborative evidence. the court can be guilty of judicial superstition. If it fails to appreciate, that is the problem against scintific background.

The court shall also consider the deposition of medical expert when he answers hypothetical question. The value of an expert does not lie on the depend upon his qualification, rather upon the soundedness of reason advance by him. the opinion of an expert is of an advisory nature. and is not binding upon the court. if the law has made the physician the witness he shold remain the man of science and he has no victim of avenge no guilty person to convict and not innocent person to save.

 It applies to both civial law and criminal law. The opinion to the any person other  than the opinon of judge by whom the fact has to be decided as to the existence of the fact in issue or relevent facts are the rule irrelevent to the decision of the cases to which they relate for most obvious reason. The rule is not without ecception. if matter arises we commonly take help from this faculty or  which it concerns. the judge is not expected to be expert in all fields especially where subject matter involves technical knowledge. He is not capaable of drawing inference from the facts. which are highly technical. In these circumstances, he needs the help of an expert who has suppose to have superior knowledge or experience in the particular case though he is no way related to the case. Because of an expert has advantage of particular knowledge and hence not capable of drawing an inference from the fact presented before him.

History of an Expert Evidence

 It was very old concept that an offence could be proved through scintiic evidence. There were two physicians  who conducted a postmortem in 300 bc in alexandria. A european  collector discovered the factum that a person could be distinctly identified with the help of fingerprints. the court should admit the opinion of an expert from very early time. But the procedure use for trial was different. Before the 16th century the trial was merely a submission to mechanical proof. At that time there was no  person as an expert. cases were tried by a group of rational man usin tg reasoning process upon the information before him. Jury system  was there and the witness who were acquinted with the facts of the case included in the jury panel. for the first time it was in 1652 that the command was issued to compel the witnesses to testify the  order. It was matter beyond its knowledge. By middle of the 17th century the office of the jury become clealy distinct from  that of the witnesses. 

Who is an Expert

  Article 59 of qanoon e shaadat states

Opinions of an expert: when the court has to form an opinion upon a point of forign law or of science. or art or as the idnetity of hand writing or finger impressions. theo opinion of the person especially skilled  in such law. scinece or arts or in question as to identift the hand writing or finger impression are relevent facts.

such persons are called experts.

 Expert mean a person qualified trained or experienced in conducted who is nominated by the applicant or federal government as an expert of intercepted material.

Expert is a person who is specialize knowledge or skill in any of the following area.

Forign law

science or arts

identity of hand writing

identity of finger impression

Principles of law of evidence:

In strict sense of law evidence means anything which is admissible in court of law and can be either oral documentary or real evidence. It must disclose about some facts anything or state of  things or relation of thing calpable of being percieved by  the senses or psychological facts. any mental condition  of which anything is conscious.

Article 71 of qanoone shahdat order the evidence must be direct and to say

if it refers to a fact that could be seen if it is evidence of witness who says he saw it.

It refers to a fact which could be heard it must be evidence of witness who says or heard it.

If it refers to a fact which could be heard it must be evidence of witness who says he heard it.

Article 59 of qanoone shahdat order 1984  creates exception and opinion of persons specially skilled in  forign law scince or arts as to the identity of hand writing or finger impresssion are relevent facts. Experts although Expert are not witness to crime. yet they can draw inferrence during investigation providing if such evidence comes within the scope of their expertise.

Provisional of Qanoone shahdat 1984

Relevent Articles

Opinion of Experts

   When the court has  to form an opinion upon the point of forign law or the science or arts or as to identity of hand writing or finger impression. The question is weather the death of A was caused by poison. The opinion of expert on A cause of death is relevent.

The question weather certain document was written by A. Another document is produced when prove or written by A. The opinion of expert weather two document are written by A or different person are relavent.

Facts bearing upon Opinion of experts:

Facts not otherwise relevent, if they support or inconsistent with the opinion of experts. when such opinion are relevents.

Illustration:

the question is weather A was poison by a certain poison. the fact that other person who was poisoned by the poison certain symptoms which experts affirms or deny to the symptoms of the poison are relevent.

The question is Whether an obstruction to the harbour is caused by certain sea wall.

The fat that other harbor similarly situated in other aspects. but where there were no such walls began to be obstructed at about same time is relevent.

Opinion as to hand Writting when relevent

When court has to form an opinion as to the person by whom any document was written or signed the opinion of any person acquainted with hand writing by whom  it is supposed to be written that it was or it was not written habutually submitted to him.

Illustration:                               

The question is whether a given letter in the hand writing of A, a merchant in london.

B is a merchant in peshawar. who has written letters adresses to A and recieved letters purporting to written by him. C is B clerk. whose duty it was to examine the file. D is B broker. to whom b habitually submitted the letters.

The Opinion of B, C, and D on the question whether the letter is in the handwriting of A are relevent though Niether B C or D ever saw A write.

Ground of Opinion when relevent:

 Whenever the opinion of any living person is relevent. the ground on which such opinion based are also relevent.

Provision of An Act 2007:

The government shall appoint an expert in the prescribed manner.

No person shall be appointed as an expert unless he is qualified to conduct examination of forensic material. A person appointed in the agency as an expert appointed under section 510 of the code and person especially skilled  in the relevent material under article 59 of qanoone shaadat.

The government or the agency shall not examination of the forencis material.

A person appointed in the agency as an expert shall be deemed to giving false evidence under any law for the time being in force.

Expert Opinion

 A court tribunal or authority may send to the agency a forensci material related to investigation or proceedings before it, for examination and expert opinion.

The agency shall authenticate and send expert opinion to a court, tribunal or authority in the prescribe manner

An expert opinion shall carry the name and designation of expert who conducted the examination.

The government or the agency shall not examine a forensic material to a person who is convicted of an offence related to investigation before it. 

An expert opinion shall carry the name under any law for time being in force.

Clarification in case of certain Opinion:

 If expert opinion is not clear the court tribunal or authority may refer to the agency for clarification 

on a specific matter. The agency shall on receipt of reference send clarification to the court. the agency shall state its inability to answer question.

Provision of code of criminal procedure:

Any document purporting to be a report under the hand of chemical examiner, or assistant examinar to government fingerprint expert or finger arm expert appointed upon any matter or thing duly submitted to him for examination or analysis and report in the cause may without calling him as a witness provided that the court may consider necessary the person by whom such report has been made.

Basis of Expert testimony in court of law:

 wheter evidence of an expert is admissible or not basis of testimony of exert witness in court of law can be discussed as following.

Matter which the court considers call for the special skill or knowledge of an expert. The helpfulness test:

An expert opinion is admissible only if can furnish the court with scientific information which is likely to be outside the knowledge and experience of a judge.

For instance in issuance of Mens rea the court will not admit an expert evidenc because judge does not need help in deciding on intention of man with the normal mind ilness was insane at the time of commissoion of an offence.

However there are certain areas of forensic science where only expert witness can testify. forensic experts evidence is very useful to courts.

Article 18 of qanoone shahadat order restrict scope of evidence that is admissible in any suit or proceeding

Expert testimony can only be given that are subject matter to litigation and either fact in issue or relevent fact. any fact which is not disputed is admissible and need not to be proved in such case there is no need of expert evidence. If subject matter of litigation weather A committed rape with B or not?

Evident of fingerprint in present case are probative but irrelevent.

Indication of realibility include:

Peer review

publication

The known or potential rate of error'

Role of an Expert:

Evident given by an expert should be independent. He much provide as assistence to court. It must be objective. Unbiased opinion in relation  to matters within its expertise. Role of expert is not assume the jurisdiction upon which the  opinion is based. so that it helps the court understanding the facts.

Function of an Expert:

 The function of expert witness was clearly laid down in regina vs turner. their function is to provide the court with information about the point or  to help the tribunal to fact to interpret about point at issue. which is with the knowledge and experience of the person. 

in doing so the expert may express the opinion which is out with  the knowledge  and experience of that tribunal. in doing so the expert may express an opinion for the interpretation of proven facts. their task is to furnish basic scientific and technical data and to present inference and conclusion. From the name it is clear that they are different from  other witnesses and they are getting priority over other witnesses.

expert evidence should be independent and not influence from the litigation.

Expert opinion should be unbiased and objective an expert witness should never the role of an advocate.

Fact or assumption upon which the opinion was based shold be stated. together with material facts. which could detract from concluded opinion.

An expert should make it clear when question fell outside the experience.

If there are insufficient data upon to which reach an opinion. this had to be stated with indication that opinion wass and any doubt had to be stated.

There ought to be full disclousre of documents referred  to in the expert evidence.

Opinion testimony by a lay witness:

   The traditional rule lay witness must have traditional knowledge about what he is testifying. Now a days lay witness gives opinion in special circumstances. this liberal trend is due to necessity and convenience. sometime it may  be difficult to or impossible to make actual meaning of facts collected by 1.3  witness because they are not ready properly and accurtely described. In such a situation he may be permited to give a shorthand randition of his knowledge about the collective facts. Justification governing the admissibility of lay opinion testimony while delivering the judgment in united states court. If  it is possible or difficult or knotty or combinatin of circumstances and appearances which can not be adequately described and presented with the force and clearness as they appeared to witness.The witness may stand his opinion based upon what he has observed. It is means of conveying to the jury what the witness has seen or heard. if jury is put in the position of equal vantage with the witness for drawing the opinion, then the witness  may not give an opinion. The fact that one Raymond cart skeet was charged and convicted by the district court of arizona for causing seriously bodily harm to one robert by firing. During trial, skeet took the defence while he was backing away, he stumbled and fell backward over some metal fence ports, which were lying on the ground behind him and the gun went off accidently. But the prosecution contended that Raymond never felt out and was standing on both feet when he fired  the gun. Raymond in support of  his defence adduced evidence of Robert and his wife shirley about his opinion as weather the shooting was accidental. But the trial court refused to accept the opinion. Before the court of appeal one of the main issue raised was weather rule 701  and 704 of federal rules of evidence permit a defendent to present evidence. But considering the circumstnaces in the case court helf that it was not an error committed by the trial court in refusing to permit to present lay opinion testimony that his shooting was accidental. because no prejudice was caused to th defendant in rejecting the same. Though the case court certified that no lay opinion testimony is on equal vantage with the witness.

Law regarding the admissibility of lay opinion testimony

  In united states rule 731 of the federal rule of evidence gives authenticity to the opinion by lay witnesses. Rule 701 read as follows. If the witnesses is not testifying as an expert the witness testimony in the form of opinion or inference is limited to those opinions or inference which are rationally based on the perception of the witnesses and helpful to a clear understanding of the witness testimony of the determination of a fact in issue rule 701 was codified in a negative sense. The rule aims not the admissibility of lay opinion testimony but as limitation for it. Thus as per the rule a lay witness testimony to become admissible must be rationally based on the witness perception. That means such types of witnesses must have first hand knowledge of the factual predicates that form the basis of opinion. He must have an opportunity to observe and must have observed the facts of testimony. The witness must offer all the factual basis of his opinion. If the testimony of a lay witnesses is a repetition of statement of others. then the objection can be raised that the witnesses lacks knowledge. The testimony will get an authticity even though it is an opinion. Leading U.S decision. For instance weather a person is sane or insane? court may consider the opinion of lay person who had oppurtunity to lay the act.  Spoken words and appearances of the person in question. It is completely the discreation of the trial court to determine weather a particular peace of opinion is helpful or not. IN knight case court of appeal held the eyewitness testimony that the gunshot was  accidental would be helpful to the jury. the eyewitness fully elaborated all the circumstances that led to the opinion. In england there is the slight difference regarding the rule relating to admissibility of lay opinion testimony. The lay opinion testimony is generally and admissible in english  jurisdiction. according to section 3(2) of the civil evidence act.

It is hereby declared that where a person is called a witness in any civil proceeding, a statement of opinion by him on any relevent matter on which he is not qualified to give expert evidence. If made as we way of conveying relevent facts personally percieved by him is adminssible as evidence what he percieved. In england in order to admit a particular piece of lay opinion evidence it must be come from the first hand knowledge of witness. This is different from the position in the united states. In England nothing has been provided to limit admissibility of lay opinion testimony. It says that such lay opinion testimony must helpful to a clear understanding of the witness testimony or the determination of the fact in issue. The only thing used in the provision as the condition precident is that such opinion must be made in order to convey relevent facts personally known to him. In united states rule 71 of the federal rule.

Evidence is common to both civil and criminal cases. But section 3(2) of the civil evidence in england deals with civil cases. No such special provision has been made regarding the admissibility of lay opinion evidence in criminal cases. Criminal evidence act is silent regarding this aspect. Leading english decision regarding the admissibility of lay opinion evidence in criminal cases. A car driver was charged for driving the vehicle with due care and alteration. He was also prosecuted for drunken driving. The car had ac collision with vehicle owned by the state. A witness which was present at the spot gave the opinion as the how to accuse appear to be behaving while he was present. The defendent took the contention the witness should be allowed to speak only on facts he had seen. Because it was for the court to say what was appelant condition court held that the witness was perfectly titled to do so on which the impression was based.

The court observed that the witness would not be allowed to state that the believe to accuse to be unfit to drive. As far as this case is concerned, it is submitted that the view taken by the court is correct. How ever it is questionalble regarding the delegation of power  weather a person is intoxicated or not? In some cases in which a person is to be held criminally responsible, the court find out weather he was intoxicated or not? In some cases In which person has to be held criminally reasonable. the court has to find out weather he was intoxicated or not at the time of commiting the offence. Considering this probleem it is suggested that it would be better to allow the witness merely to state its impression regarding the person in question by using the judges reasoning in Australia. The law has been  enacted in the line of US legislation. Australian legislature has deviated from the common law rule and adopted a liberal stand in admitting the lay opinion testimony. Regarding this the australian law reform commission gave the allowing explanation for the proposal, which led to enactment of section 78 of the evidence act 1995. At present lay opinion evidence is conveniently said to be inadmissible unless it fits within the lengthy period of time. It is proposed to admit lay opinion testimony where it is. based upon the personal perception of the witness and it is necessary to obtain the adequate account of his proposals  in India. There is no seperate provision in the Indian Evidence Act regarding the admissibility of lay opinion testimony. In order to admit a particular pice of opinion. It should come under section 45  of the act. But from the language of section 47 to 50 lay opinion testimony relating to hand writing Presence of right or custom. Usages tenets and relatioship may be admitted. In all other cases, it should satify the requirement under section 45. section 45 say in order to give an opinion a person must be an expert. Section 47 of the evidence act reads as follow when the court has to form an opinion of any person acquinted with the hand writing of the person by  whom it is supposed to be written or signed that it was by that person is a relevent fact.

From the construction of provision itself, it is clear that any person may give testimony regarding the hand writing signature and it is not restricted to experts. One feature of this section distinct from united states law is that it is not necessary to have direct knowledge. It is not necessary the witness must have seen the person in question write the impungned document. there is no need to give reason in support of the lay opinion testimony but he must have familiarity with the writing of the person in question. Section 47 of the Indian evidence act is based on the english law. Like handwriting and signature, non-expert opinion must be admitted regarding the existence of this right. 
One of the main distinction between the indian and US law subject by lay opinion testimony Specifically mentioned in section 47 to 50. While in Us law It is only provided in general terms. Hence, in United States court may admit any piece of lay opinion if it is helpful in determining the face in issue. In England lay witnesses have right to give an opinion on the subject which is warranted. But almost in all cases conviction made only on the basis lay opinion testimony were treated by appealate court as weak. Thus it was warned by the judge that it would be dangerous without expert guidance to amke comparison of signature.

In this case the appealant was the servant of the company whose work was to make overnight pizza delivery. ON wrong decision he was charged with 400 pounds. The evidence was that man has seen him on night to hide the currency. The question rose weather the man has the right of give evidence or not.

His signature were appeared to the jury. The defence disputed the testimony on signature which was adduced without expert evidence. In england lay persons were not allowed to give opinion with regard to mental opinion of a person but they were allowed to state or explain the conduct in question.

This is not consider as opinion but as the part of eliciting facts. In united states court have taken a liberal attitude in admitting the lay testimony describing conduct declarations. spoken words appearances and manner of speech which have bearing on one sanity. But an opinion can be admitted only if a witness had longer opportunity to observe the person in question. In united states, the district court declared rule regarding admissiblity of lay opinion testimony on sanity. A non-expert witness may never in resoponse to purely hypothetical question stating the facts be permitted to given an opinion on the question of sanity. But  by the great wheat of authority one who, in the opinion on the question of sanity in the opinion of trial court, shows adequate means of becoming acquinted with the person whose mental condition is in isssue. prosecution rebutted this testimony by adducing evidence of numerous lay witnesses who had known the accused for varying period of time. They included men who did business with him and merchants who had obtained goods from him. Giving details about the facts and circumstances of their association with the defendent. Their opportunities for observation and knowledge acts conversation and conduct the witness concluded that  the accused was sane. Before the appelate court One of the error pointed out by the appealant was regarding permission given by trial court to prove sanity of the defendent. The above discussion says lay opinion must be valid that the collision was at the time of occurence in courese of trial the plaintiff gave evidence that the learned after the collision.

The question before the appealant court weather this decision was enought to declare the appealant liable. With regard to the case court found that the verb learn used by the plaintiff in his testimony was important. Court referef to the centruy dictionary and encylopedia observed. a witness may testify in accordance with his knowledge at the time of testimony is offered and is not restricted to thee knowledge at the time the event occured. Court further stated that the use of the word learn witneses is not harbinger in this case. if it is self acquired knowledge without any information given by a third party. Obviously there is difference between recieving of knowledge and information. Recieving of knowledge means acquiring of knowledge throught the senses. Either at the time of occurence or before the time of money. when a witness says that he had not observed the transaction. Actually he had observed but he would not make out what exactly had happened. In some cases It may be imposiible for one to understand of an object one has observed. Even though he is a prudent man. For instance in an accident case one can easily identify the driver of the vehicle but it is difficult to know the ownership  of the vehicle. It is not apparent from the body of the vehicle. this can not term strictly as hearsay evidence. In order to lessen the rigour of strict rule of first knowledge court inroduced in a case in united state the testimony sholuld not be excluded in personal knowledge unless no resonalble juror could believe that witness had ability and opportunity to believe the event testify about. In this case the accuse was convicted in the united states for conspairacy to distribute cocaine.

      Before the trial court once convicted that the gave evidence in supporting the prosecution case.

Defence council opposed this testimony because lack of  perosnal knowledge because certain inconsistancies showed that he was prevented by drug addiction from obtaining personal knowledge he was testified. Court held even though the witness testimony was unbelievable and and impaired a rational juror could believe that witness has percieved the course of to which he testified. From the case it is clear that jugdes can elicit from the witness weather he has an opportunity to observe that act of his testimony. Minor inconsistancies Occurs while collecting the facts may not affect the root of the evidence. If the witness testifies to fact that he knows partly at first hand and partly from report judge may admit according to reasonable relibility of the evidence.

Extent of Admissibility:

to what extent testimony can be admitted is a moot question. Lay witnesses having ordinary knowledge and no specific knowledge or opinion. Therefore their opinion shall be recieved only in such cases where it can not be avoided. Some limitaiton imposed on liability of lay  opinion testimony were proved effective to check unnecessary evidence. In almost all jurisdiction lay opinion testimony will be avoided if it will be invade the province of the judges or it will not be helpful to the determinatin of the issue. Similarly if a lay witness attempts to take the role of an expert and vice versa. his testimony will be excluded. There has been completely eliminated by 2000 amendments to the rule 701 . The language of the rule requires that lay opinion testimony to be admissible must other things. be not based on scientific technical or other specialize knowledge within the scope of rule 702. The advisory commitee note that the 2000 amendment of rule 701 suggests bioth the reason for treating opinion testimony for expert testimony. and how to proceed when former becomes the latter. From very early days the friction of judge  and a witness have been clearly demarcated. The concept was that it was the duty of judge to decide the issue of face and witness could not usurp the function or can invade the jury by the opinion. Here  the terms opinon mean any things, which may directly settle the issue in dispute. How far a witness may go in stating for opinion for practical discreation of the trial court. the discreationary power must be used judically. Otherwise the appealant court for its abuse may curtail  it.

Normally appealant court may not take decision taken by the trial court. if there is no prejudicial error.

In United states vs Jackson circuit court had consider the issue. The fact disclosed the accused was convicted in the trial court for a bank robbery. Issue in this case was that weather the trial court was agree that the person witness can give evidence or not. The witness testified that she had met the accuse whom she knew and it was the person photograph one had shown to her. ccourt held trial court had discreation in admitting the evidence and appealant court could not reverse it. in the absence of its abuse. another contention raised by the appealant was the trial court is doing wrong in permiting the lay man to witness in the case. for the court said, there was no wrong because the trial man was knowing the truthworthiness of the case. which ought not to go there and no legal power not even the judges order that can compel them to accpet the witness opinon against their.

Common Knowledge rule:

The essentail function of expert witness is to supply proposition of special knowledge which is beyond the judge. But at the time the expert opinion does not take away the common man's judgment. They have to capacity to thinks and judge things from day to day experrience. Therefore the fundamental rule is to exclude the rule that will not help judge in understanding the facts. Whenever inference and conclusion can be drawn by the jury as well as by the witness. the witness is superflous. Judges have stock of knowledge and they will not allow any one even a person who  is highly qualified to testify the matter regarding any thing in that stock. they are in view that in cases if it is admitted. It may cause confusion in their mind. The english court of appeal in Regina vs turner determined the controversy in this area which could be considered as influential begening about common knowledge rule in english system. Which is likely to be outside the experience of judge. In such cases if it is given dressed up it may make judgment more difficult.

Lewto further said, we all know that both men and women are deeply in love and sometimes do and sometime in rage when discovering tough situation. He said jurors do not need psychtric folks to know what is going on in the heart of something what we know and what we do not know. Thus in england courts were reluctant to admit expert evidence on human behavior. similarly, expert evidence. the decision in australia shows that court were reluctant to expert evidence, on matters which could be determined, by their facts based on common knowledge. They apprehend that such type of evidence where experts exceeds the limit of its area to bound the self knowledge. In united states valueable judicial pronouncement if they as men  of common.

Suggestins reforms relating to expert evidence in criminal justice system

     the starting point for any serious discussion is the recongintin of information is different from other type of information. that we use in litigation. and that the function of expert are completely diffetent from those of other people who provide information in court. it is not necessary in courts

Conclusion:

   From the above discussion it is concluded that the rule can only be a matter of form rather than substance.  Courts were reluctant to take the evidence  of lay man. They are hesitant about the view that a layman can give  its opinion. And they say only an expert can give the opinion to the court.