Admissibility, Direct & Cross Examination

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 continued laissez - faire approach for admitting expert evidence utilized by many courts

Junk science as the leading cause of wrongful convictions

The Law Commission’s Report 325, Expert Evidence in Criminal Proceedings in England and Wales

The Law Commission’s Report 190 The Admissibility of Expert Evidence in Criminal Proceedings (UK)

The avalanche of “junk science” remaining the legal system

Codes of conduct and ethical practice for experts (UK, Canada & Australia)

The severe lack of scientific knowledge and training among lawyers & judges

The impact of domain irrelevant information on forensic evidence

Australia’s “hot tub” procedure of concurrent expert testimony

The weaknesses of some forensic disciplines, including fingerprint, bite mark, hair and bullet lead

Canada’s adoption of the Daubert criteria

The routine failure of litigators to thoroughly challenge the validity, reliability and admissibility

The lack of meaningful consequences for advocates of junk science

The epidemic of misconduct by 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.