Demosthenes Lorandos & Judge Stephanie Domitrovich
The standards governing the admissibility of expert evidence in the courts of the United States, United Kingdom, Canada and Australia have been increasingly scrutinized over the last few decades. Each jurisdiction has its unique wrinkles, with some (United States) having more exacting standards, particularly in terms of the attention paid to the proffered expert and their opinion, than others (Australia). Nonetheless, there are similarities. And each nation’s courts have addressed concerns, to varying degrees, over issues such as validity, reliability, expert qualification, the need for expertise, whether the proffered opinion will assist the trier of fact and, of course, relevance.
This chapter thoroughly explores and analyses the development and specific requirements of each nation’s standards. Topics of particular interest include:
The Daubert Trilogy (U.S.)
The Law Commission’s Report 190 The Admissibility of Expert Evidence in Criminal Proceedings (UK)
Australia’s “hot tub” procedure of concurrent expert testimony
The continued laissez - faire approach for admitting expert evidence utilized by many courts
The avalanche of “junk science” remaining the legal system
The weaknesses of some forensic disciplines, including fingerprint, bite mark, hair and bullet lead
Junk science as the leading cause of wrongful convictions
Codes of conduct and ethical practice for experts (UK, Canada & Australia)
Canada’s adoption of the Daubert criteria
The Law Commission’s Report 325, Expert Evidence in Criminal Proceedings in England and Wales
The severe lack of scientific knowledge and training among lawyers & judges
The routine failure of litigators to thoroughly challenge the validity, reliability and admissibility
The impact of domain irrelevant information on forensic evidence
The epidemic of misconduct by advocates of junk science
The lack of meaningful consequences for advocates of junk science
In addition to detailed coverage of these topics, case vignettes and research are also provided that illustrate: (1) how courts function effectively and fairly when only valid, reliable and relevant expertise is admitted; (2) the ongoing failure of judges and lawyers to become scientifically literate; and (3) the serial injustices that have occurred as a result of the introduction of junk science in courtrooms. With a thorough review of the relevant scholarly literature and governmental commissions, reports and law from each of the four subject jurisdictions, the Expert Evidence in Courts chapter is an invaluable resource for litigators and potential experts alike.
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