Firm 16B Class of 2017 KSL
INTRODUCTION
THE TRIAL LAWYER AND EXPERT TESTIMONY
Trial lawyers are lawyers who represent clients involved in litigation, both civil and criminal whereas Expert testimony is opinion evidence made by a qualified person about a scientific, technical, or professional issue. The thematic concern of this paper is the examination in chief of an expert witness.
EXAMINATION
IN CHIEF OF AN EXPERT WITNESS
This
is the process of eliciting evidence from one’s own witness in court, it is
also the process of getting a witness to tell his or her story and testify as to
facts that you have called him/her to prove. There can be no leading questions.
Examination in chief is covered under section 148-160 of the Evidence Act.
This
paper will focus on the examination in chief of an expert witness. It will give
a guideline on how to go about the examination in chief of an expert witness. It
will traverse and embrace;
1. Who
an expert witness is.
2. The
need for an expert witness.
3. The
statutory basis of an expert witness
4. The
pre-trial preparation of an expert witness
5. The
process of examination in chief of an expert witness in extenso. This will include the qualification of an expert witness,
establishing the basis of the opinion, eliciting and explaining the opinion.[1]
WHO IS AN EXPERT WITNESS?
The evidence Act under Section 48 posits in
verbatim that when the court has to form an opinion upon a point of foreign
law, or of science or art, or as to identity or genuineness of handwriting or
finger or other impressions, opinions upon that point are admissible if made by
persons specially skilled in such foreign law, science or art, or in questions
as to identity or genuineness of handwriting or finger or other impressions[2].
Such persons are called experts[3].
Black‘s Law Dictionary defines it as a
witness qualified by knowledge, skill, experience, training, or education to
provide a scientific, technical or other specialized opinion about the evidence
or a fact issue[4].
As
such the role of an expert witness is to assists the court to understand the
evidence before it determines the fact in issue. They do so by giving their
opinion on matters that
are foreign to the court.
For
a person to be an expert, he/she must;
·
Be shown to be competent
·
Have a special study of the subject or
have long experience on the subject matter
·
Have acquired special experience as the
value of the evidence of an expert will be enhanced or depreciated according to
the number of years they have practiced. The court has to be satisfied that the
person before it is an expert and the matter before it requires expert evidence
QUALIFICATION OF AN
EXPERT WITNESS
The
issue of qualification of an expert witness has raised controversy as to
whether academic qualification or practical acquaintance can render one as an
expert however the courts have settled it that either of the two is sufficient
to constitute one as an expert[5].
In
the case of Gatheru and Njagwara vs. Republic[6] the accused was charged
with unlawful possession of a firearm. A police officer gave evidence where he
simply described himself as an Inspector of Police attached to the C.I.D.at
Nanyuki. He did not tell the court how long he had perfected his duties, whether
he had ever seen or examined any hand –made weapon other than those seized in
the course of the operation, which led to the arrest of defendant. Issue on
appeal was whether the opinion evidence of such a witness was admissible as
expert evidence. The learned judges observed that “expert skill is not confined
to knowledge acquired academically, but would also include skills acquired by
practical experience. It may well be that in the present circumstances in Kenya
a police officer employed on operational or investigation work acquires a
sufficient practical knowledge so as to qualify him to speak as an expert”.
Opinion evidence of an
expert witness
The
general rule is that oral evidence should be direct evidence and witnesses
should only testify on facts that they perceived with their five senses and not
to give personal opinions[7]. Opinion evidence in this
case is an inference or conclusion that a witness draws from matters perceived[8]. The general rule is that
opinion evidence is inadmissible; the rationale behind this is that under
common law it’s the work of the judge to draw out conclusion from the facts and
not the witness.
However
this rule is subject to two exceptions. The first and which is the premise of
this paper is expert witness evidence. An expert properly qualified may state
his opinion on a matter calling for expertise which he possesses. This
exception acknowledges the fact that in some cases, absent opinion evidence, a
court may be unable to reach a conclusion based of the evidence on record. In
Kenyan jurisprudence the exceptions under expert evidence include opinions as
to; handwriting, customs/rights, relationship as to persons and body of law or
conduct of a charitable or religious organization. The last exception is that
at times the court can admit evidence of a non-expert witness as to opinion
based on ones perception as to speed, age, height and state of intoxication.
This is based on the reasoning that at times it is very difficult to draw the
distinction between fact and opinion as such the court exercising its
discretion may admit such.
OBJECTIVES OF AN EXAMINATION IN CHIEF OF AN EXPERT
WITNESS
The
main objectives of examination in chief of an expert witness may be analyzed as
follows; First and foremost is that Expert witnesses assist the court to come
up with a proper conclusion based on the evidence adduced by the expert
witness. This happens in situations where, without the assistance of an expert
witness, the common mind can’t draw a proper conclusion on the matter at hand[9].
In the landmark English case Davie v Magistrates of
Edinburgh[10]
It provides that where a witness has particular skills in an area being
examined by the court and he or she has been called to give evidence on that
matter, the witness should give the evidence on that area in order to help the
court to come up with a proper conclusion on the matter. He or she could
furnish the court with the necessary scientific criteria which will assist the
court in coming to a conclusion on a matter. The other objective is that expert
testimony helps to support the facts or evidence adduced by other witnesses in
the court especially where the expert witness is directly involved in the case
at hand[11].
An example is that, in motor vehicle accident, the plaintiff’s Advocate may
call a doctor who attended to the victim of the accident to explain to the
court the nature of injuries that the victim sustained in the accident .In this
situation, the court might vary both testimony of the lay witness and of that
the expert witness and decide to go one testimony. The expert witness also
helps to clarify on the facts or evidence adduced by other witness more so
where the expert is indirectly involved in the case, in matters such as like
this an expert witness who is skilled in a particular are may be called by
court to give his or her opinion about the matter at hand and the court may
decide to uphold the opinion or disregard the opinion of that expert witness.
The expert witness testimony also helps to prove the elements that support the
cause of action as narrated by the witness in the court. The other objective is
that expert testimony set a good foundation to properly introduce exhibits into
evidence, through the examination in chief of an expert witness, the advocate
is able to introduce exhibits in evidence.
In
conclusion, expert witness are normally called to court to help the courts to
come up with a proper conclusion the case at which the court cannot solve
without the assistance of the experts thus they are very important in the
society.
THE STATUTORY BASIS
The
examination in chief of an expert witness is provided for by section 145 of the
Evidence Act which states that the examination of a witness by the party who
calls him shall be called his examination-in-chief. In other jurisdictions it
is known as direct examination.
An
expert witness alike any other witness must be competent and compellable.
Competence is the ability of a witness to give evidence in a court of law.
Section 125(1) of the Evidence Act states that the court considers that
everyone is competent to testify unless the court considers that they are
prevented from understanding the questions put to them.
Compellability
has to do with whether a witness can be legally forced to testify against his
wishes. Normally the general rule is that all witnesses who are competent to
testify are compellable. This is subject to exceptions such as an accused or a
wife.
The
evidence that an expert witness gives must be relevant and admissible.
Relevance has to do with the relation or connection with the matter at hand.
Sections 5-16 of the Evidence Act cover statutorily relevant evidence.
Admissibility
is provided for under section 3(1) of the Evidence Act. It states that
admissible means admissible in evidence. The general rule as outlined by Prof
Adriane Keane is that for evidence to be admissible it must be;
1. Relevant
2. Have
probative value that outweighs its prejudicial effect
3. Have
sufficient weight
4. Not
adversely affect the proceedings
5. Not
excluded by exclusionary rules of evidence such as privilege[12].
In
Kenya, sections 48 – 54 of the Evidence Act cover the admissibility of an
expert witness.
Section
48 states that when the court has to form an opinion upon a point of foreign
law or of science or art or as to identity or genuineness of handwriting or
fingerprint or other impressions- such opinions are admissible if made by
persons specially skilled in that area.
Consider
the decision in Maina Thiongo v R[13]. This was an appeal brought by the appellant who had
been charged and convicted with trafficking narcotic drugs contrary to Narcotic
Drugs and Psychotropic Substance Act, he had in possession, at the time of
being arrested cannabis. One of his grounds for appealing was that the evidence
submitted in the court was not compelling enough to give ground to his
conviction. This is because at the hearing, the government analyst who was to
testify and prove the substance the appellant was found in possession of, was
indeed cannabis was absent. Therefore there was no proof that the substance
collected was a narcotic drug, the court had relied on the evidence produced by
the investigating officer. The government analyst should have clearly been in
court to give his expert opinion evidence, since that is his area of
proficiency, and not the investigating officer because such matters fall outside
his job, understanding and experience and was therefore not competent to make
such evidence.
It was held therefore that
there was a miscarriage of justice by admitting evidence without the presence
of the expert witness himself, and that the appellant was not given a fair
hearing for the offence, his appeal was allowed and the conviction quashed and
set aside.
Further in the decision of Mutonyi v R[14]
Potter JA said that, an expert witness
who hopes to carry weight in a court of law, must, before giving his expert
opinion:
1.
Establish by evidence
that he is especially skilled in his science or art.
2.
Instruct the court in the
criteria of his science or art, so that the court may itself test the accuracy
of his opinion and also form its own independent opinion by applying these
criteria to the facts proved.
3. Give
evidence of the facts on which may be facts ascertained by him or facts
reported to him by another witness.
Section
49 posits that facts that support or are inconsistent with the opinions of experts
are admissible
Section
50 affirms that opinions as to handwriting are admissible if made by someone
who is acquainted with the particular handwriting. The handwriting person need
not be a handwriting expert as a profession. In the decision of R v Silverlock[15]a solicitor had viewed the
handwriting of a particular person for many years. His evidence as to that
handwriting was held admissible in the court. in court a handwriting expert
must express neutrality in his evidence. The testimony must be limited to the
similarities and dissimilarities thereto. The court will consider this and make
a decision[16].
Back
home, the case of R v Francis Muiniu
Kariuki[17]
was a criminal appeal case at
Kiambu, whereby the appellant had been charged and convicted for life
imprisonment for defiling a minor contrary to the Sexual Offences Act. Ground
for appeal was among other things, whether the medical evidence in court was admissible.
The complainant had been examined by a Dr. Mwashu, who filled the P3 Form and
medical report, however at trial this doctor was not available to testify and
so her colleague Dr.Muyendo testified and produce the relevant documents. The
appellant argued that the representative doctors’ evidence shouldn’t have been
admitted. Dr Muyendo said she was familiar with Mwashus handwriting but the
appellant further argued that there wasn’t evidence enough to prove that they
had worked long enough for her to recognise Mwashus handwriting hence act on
her behalf. Muyendo was therefore referring to notes by the other doctor and
she didn’t examine the victim. Also, to make matters worse, there were
discrepancies in the P3 form as to dates among other things. It was held that
the medical report presented had a lot of inconsistencies hence doubt as to the
guilt of the appellant, because all elements of the crime were not proved. The
appeal was thereby allowed and the conviction quashed.
Section
51(1) asserts that opinions as to customs or rights are admissible if made by a
person likely to know the existence or non-existence of the particular custom.
Consider the decision in Kinyanjui Kimani
v Gikanga[18].
This was a case that was a
dispute over land, this land had belonged to a man called Gikanga who had died
in 1942. The respondents were his two sons and the appellant his nephew. The
appellant claimed his uncle had transferred to him 30 acres of land, and a
grant made to him thereof, but this had only made him a tenant at will. He had
remained in occupation of the land for 31 years. He was later placed in
detention and its during his time in detention that the respondents, wrongfully
registered the land in their names. The two then claimed that their cousin had
no right on the land according to Kikuyu customary law. The issue that arose
was what the rules under kikuyu customary law regarding to the status of a
tenant at will, by which, if any land may be granted absolutely or by gift, and
also the proper way in which to ascertain such rules. Duffus, J.A held that in
such case, the party propounding the customary law would have to call evidence to prove that
customary law, as would prove the relevant facts of his case.
Section
52 covers special knowledge. Opinions as to persons having facts of any
association, body of men or family or the constitution or government of a
charitable or religious organization. The opinions of such persons are
admissible.
Section
53 states opinions as to relationships between people will be admissible if
made by persons likely to know of such relationship such as family. This
provision is brought to life in the case of Tabitha
Waithera Mararo v Eva Naina Kaaka & another[19].This was a succession
case, whereby the deceased died and a grant of letters of administration given
to his wife and their daughter. A year later the applicant made an application
for annulment of the grant, she alleged that she was the second wife of the
deceased and they had a daughter together and that the respondent had not
sought her consent when petitioning for the letters of grant of administration.
The respondents advocate submitted that the applicant could not prove that she
was married to the deceased, and under Section 51 as read with 53 of The
Evidence Act, the burden was upon the applicant to call an expert in Maasai
customary law to testify and prove in Court whether the alleged marriage took
place. There was evidence from two persons who proved that indeed there was a
Kikuyu/Maasai traditional wedding, hence confirming the deceased and the
applicant were married. The two witnesses witnessed and participated in the ceremony, whereby the deceased
provided a traditional sword and a suit
to the father of the applicant. Among other gifts given at the wedding
ceremony, were money, a goat, bundles of firewood etc. According to their
evidence too, the father of the applicant gave a nod signifying he had accepted
the marriage after the deceased had satisfied all requirements of the customary
marriage. It was therefore held that indeed there was a marriage between the
deceased and the applicant. Therefore the respondent should apply for new
letters of administration and have the applicant as a co administrator, and
also include the child of the applicant as a beneficiary.
It
is therefore in order to say that the Court relied on the opinion of the two
who were familiar with how the maasai/kikuyu customary marriages are conducted,
in coming with a conclusion on the relationship between the deceased and
applicant.
Section
54 concludes by stating that whenever such opinion evidence is admissible then
the grounds it’s based on are also admissible.
TECHNIQUES OF EXAMINING AN EXPERT WITNESS
The first
step in preparing the testimony of an expert witness is to become an expert
yourself[20].
Before you can even effectively discuss specialized issues with an expert, you
must acquire an in-depth knowledge of the subject matter. You should be able to
speak like an expert and understand the basic concepts of the discipline.
After
acquiring the requisite general knowledge of the subject matter, you then must
turn your attention to the preparation of the expert witness for examination.
The process can be broken down into basic tasks:
- The pre-trial preparation of the witness.
- The process of examination of the witness.
- The actual examination of the witness in court.
Pre-Trial Preparations of an Expert Witness
An expert
witness may be a professional person who has had prior appearances in court
cases but it would be a grievous mistake to assume that this would allow you to
dispense with pre-trial preparations of that witnesses. To the contrary,
experts’ due to their specialized knowledge (a knowledge beyond the court’s
understanding) often require more preparation than lay persons.
As such
when preparing an expert witness, one should consider the following:
a) Be prepared to qualify your expert thoroughly
but efficiently. Obtain your witness’ curriculum vitae and review it with him
or her the questions you will ask him as an expert.
Counsel for the other side may agree that your
witness is qualified and suggest that evidence of qualification be dispensed
with. Generally, you should decline this and proceed to qualify your witness as
an expert, unless;
i.
Your witness has marginal qualifications but is
otherwise and effective witness; or
ii.
The expert being produced on the other side
has superior qualifications and counsel for the other side has agreed not to go
into the formal qualifications of his expert.
b) Advice against use of technical words or
terms. However, if it is necessary to use technical words, you must work with
your witness to simplify such technical terms or words and to do so without
coming across as patronizing or arrogant to the court.
c) Ensure that the expert is thoroughly
conversant with the most recent edition of the standard treatises on his
subject and also with the related publications. The court may give you or your
witness an opportunity to read relevant parts of such treatises into evidence
during examination-in-chief as such advise your witness that he may be
cross-examined from both sources and demonstrate how the same may be done.
d) Remind the expert not to volunteer answers
outside his area of expertise.
Remind your witness that an expert giving
evidence outside his area of expertise is like a chicken with its neck on a
chopping block – the cross-examiner will always be ready with the axe[21].
e) Experts should also make maximum use of visual
aids such as diagrams, models and charts to illustrate his evidence.
f) If you are going to use a hypothetical
question prepare it in advance and review it with your expert.
g) Prepare your witness for cross examination. In
order to ensure that the testimony of the witness elicited in examination in
chief is effective it is important to ensure that the witness can withstand the
cross examination that he will be exposed to[22].
h) Explain what questions you will ask concerning
the witness’s expert opinion and how the questions will be framed. It is also
important to explain how legal concepts such as causation, differ from medical
or scientific concepts.
i)
Explain
how to handle the issue of fees. It is best to volunteer the information about
fees during the examination-in-chief especially if you anticipate the other
side will raise the issue. The witness should be able to make it clear that he
is being compensated only for the time spent in preparation, consultation and
testimony.
The Actual Examination of the Expert Witness
In court
while examining the expert witness there are a few techniques that an advocate
should employ:
a) Use language like the expert.
You need to be able to ask questions in a way
the expert understands all the while using simple language. This is important
in order to avoid the expert correcting you in court.
Your questions should be designed to tease out
the bottom line and sometimes point of fine distinctions[23].
b) Ensure your questions are focused, precise and
elicit one point at a time.
Most examinations will go wrong because the
examiner does not know or isn’t sure precisely what he wants each question to
establish.
It is advisable to write the questions down
and weed out any ambiguities.
c) Humanize the witness
Many expert witnesses from scientific,
technical or financial backgrounds may appear aloof, intimidating or arrogant
to the court especially because they do not share their special expertise[24].
It is therefore important to humanize your witness in the course of your
examination.
d) Avoid long narratives
Most judges will give leeway to an expert
witness to testify in a narrative fashion. However, it is important to remember
to keep it short, simple and straight to the point as a long narration is not
only hard to follow but hard to digest as well.
e) Use enumeration
Enumeration is the action of mentioning many
things one by one. Audiences most often pay close attention to information
presented in a numbered list. Experts should therefore, be encouraged to
introduce concepts in terms of factors or considerations as opposed to long
narratives[25].
f) Use examples and analogies
This will help the court to better understand
the testimony.
g) Use visual aids
h) Never forget courtesy
Be kind[26].
The process of examination of the expert witness
It is
important to organize the examination in such a way that enables the judge to understand
the evidence and the progression that the expert followed on the way to, what
you hope they will accept as the expert’s inevitable conclusion.[27] The
examination should follow the order;
- Who they are; the examiner ensures that
the witness is sufficiently introduced establishing his/her expertise to
the court.
— What they were asked to do; establish a
link/connection between the client’s case and the expert witness. The link may
be direct or indirect
- What they looked at and /or what was given
- What they did and /or examined
— What they found; elicit the findings of the
witness with regard to the case.
- What were their conclusions and opinions
— Why they reached the conclusions and the
opinions that they did. The expert witness may elaborate to the court in simple
and precise language, the implications of his/her finds.
CONCLUSION
From the above discussion we can deduce that
the role of expert witness is to assist the court in reaching its decision and
expound on the technical part of the case for example explain the extent of
injuries on a victim. Therefore the opinions are persuasive but not binding to
the court. It was affirmed in the case of Shah and other vs Shah and others[28]
that the opinion of the expert witness is not binding on the court, but is
considered together with other relevant facts in reaching a final decision in
the case and the court is not bound to accept the evidence of an expert if it
finds goods reasons to not do so. The judge further went to state that where
there are two expert opinions from each party which are conflicting the
preference of either opinion is the responsibility of the court.
BIBLIOGRAPHY
LAWS
1. Evidence
Act
BOOKS
2. F.
Rossi, Expert Witnesses (ABA, 1991)193
3. D.
Ross, Trial Advocacy (2nd edn, Cambridge University Press, 2007)
4.
C.
Khune, A Litigator's Guide to Expert Witnesses ( ABA, 2006)
5.
A.
Keane
and P. Mckeown, The Modern Law of Evidence (9th edn, Oxford University Press,
2012)
6. S.
Lubet, Modern Trial Advocacy (3rd edn, Nita Publishers, 2004)
7. T.
Mauet, Fundamentals of Trial Technique (3rd edn, Thomas Reuters
Publishers, 2011)
8. I.
Morley, Devil’s Advocate (3rd edn, Sweet and Maxwell Publishers, 2009)
9. J.
Jeans, Trial Advocacy (2nd edn, West Publishing Company, 1993)
10. W.
Glitchell, Trial Advocacy: The Basics (Nita Publishers, 2006)
ARTICLES
11. R.
Shekter, ‘Preparing and Conducting the Examination in Chief of an Expert
Witness’ Manitoba Law Society (May,3,2012)
12. J.
Richards , Key Goals of Examination-in-Chief (Advocates Society, 2011)
[1] J.
Richards , Key Goals of Examination-in-Chief (Advocates Society, 2011) 13
[2]
Section 48(1) Evidence Act
[3]
Section 48(2) Evidence Act
[4] 2nd
Edn
[5] F.
Rossi, Expert Witnesses (ABA, 1991)193
[6] 'OPINION
EVIDENCE' (Learnlawke.blogspot.com, 2017)
<http://learnlawke.blogspot.com/2013/06/opinion-evidence.html> accessed 6
July 2017.
[7]
Section 63 of the Evidence Act
[8] D.
Ross, Trial Advocacy (2nd edn, Cambridge University Press, 2007) 76
[9] J.
Richards , Key Goals of Examination-in-Chief (Advocates Society, 2011) 13
[10] Davie v Magistrates of Edinburgh
(1953) SLT
[11] C. Khune, A Litigator's Guide to
Expert Witnesses( ABA, 2006) 3
[12] A.
Keane and P. Mckeown, The Modern Law of Evidence (9th edn, Oxford University
Press, 2012) 609
[13]
2015
[14]
1982
[15] (1894)
2 QB 766
[16]
Salum v The Republic 1964 E.A. 126
[17]
2017
[18] (1965)
EA 735
[19]
Succession Cause 19 of 2016 (2017)
[20]
I. Morley, Devil’s Advocate(3rd edn, Sweet and Maxwell Publishers, 2009) 308
[21]
S. Lubet, Modern Trial Advocacy (3rd edn, Nita Publishers, 2004) 179
[22]
T. Mauet, Fundamentals of Trial Technique(3rd edn, Thomas Reuters
Publishers, 2011) 88
[23]
I. Morley, Devil’s Advocate(3rd edn, Sweet and Maxwell Publishers, 2009) 301
[24]
J. Jeans, Trial Advocacy (2nd edn, West Publishing Company, 1993)
110
[25]
W. Glitchell, Trial Advocacy: The Basics (NITA, 2006) 174
[26]
I. Morley, Devil’s Advocate(3rd edn, Sweet and Maxwell Publishers, 2009) 304
[27]
Richard Shekter, ‘Preparing and Conducting the Examination in Chief of an
Expert Witness’ Manitoba Law Society(May,3,2012)
[28]
[2003] 1 EA 290
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