«BANARAS LAW JOURNAL Cite This Issue as Vol. 42 No. 2 Ban.L.J. (2013) The Banaras Law Journal is published bi-annually by the Faculty of Law, Banaras ...»
BANARAS LAW JOURNAL
Cite This Issue
Vol. 42 No. 2 Ban.L.J. (2013)
The Banaras Law Journal is published bi-annually by the
Faculty of Law, Banaras Hindu University since 1965. Articles and
other contributions for possible publication are welcomed. These as
well as books for review should be addressed and mailed to the
Editor-in-Chief, Banaras Law Journal, Faculty of Law, Banaras
Hindu University, Varanasi- 221005, U.P., India, or e-mailed to email@example.com. Views expressed in the Articles, Notes & Comments and Book Reviews and all other contributions published in this Journal are those of the respective authors and do not necessarily reflect the views of the Board of Editors of the Banaras Law Journal.
In spite of our best care and caution, errors and omissions may creep in, for which our patrons will please bear with us and any discrepancy noticed may kindly be brought to our knowlede which will improve our Journal. Further, it is to be noted that the Journal is published with the understanding that Authors, Editors, Printers and Publishers are not responsible for any damage or loss accruing to any body.
In exchange for Banaras Law Journal, the Law School, Banaras Hindu University would appreciate receiving Journals, Books and monographs, etc. which can be of interest to Indian specialists and readers.
c Law School, B.H.U., Varanasi- 221005 Composed and Printed by Raj Kumar Jaiswal, Dee Gee Printers, Khojwan Bazar, Varanasi-221010, U.P., (India).
EDITORIAL COMMITTEEProf. B. C. Nirmal Editor-in-Chief, Head & Dean Prof. M.P. Singh Senior Article Editor Prof. D.P. Verma Senior Notes & Comments Editor Prof. B.N. Pandey Senior Managing Editor Prof. R.P.Rai Managing Editor Prof. Ali Mehdi Managing Editor Prof. D.K.Sharma Executive Editor
ASSOCIATE EDITORSProf. A.K.Pandey, Prof. D.K.Srivastava, Prof. Ajendra Srivastava, Prof. R.K.Murali, Prof. V.S.Mishra
ASSISTANT EDITORSDr. M.K.Padhy, Dr. Rajnish Kumar Singh, Dr. K.M.Tripathi, Dr. Adesh Kumar
EDITORIAL BOARDProf. P.K.Singh, Prof. D.K.Mishra, Dr. S.P.Rai, Dr. S.K.Gupta, Dr. Bibha Tripathi, Dr. J.P.Rai
INTERNATIONAL ADVISORY BOARD* Professor Ben Boer, Deputy Chair, IUCN World Commission on Environmental Law,Professor, Research Institute of Environmental Law, Wuhan University, Emeritus Professor in Environmental Law, Sydney Law School.
* Prof. David McQuoid Mason, Professor of Law, Centre for Socio-Legal Studies, Hut 11, Howard College, University of KwaZulu-Natal, Durban 4041, South Africa.
* Prof. Raj Bhala, Associate Dean for International and Comparative Law, Rice Distinguished Professor, The University of Kansas,School of Law Green Hall,Kansas, U.S.A.
* Prof. Surya P. Subedi, O.B.E., D.Phil(Oxford); Barrister (Middle Temple), Professor of International Law,UN Special Rapporteur for Human Rights in Cambodia, School of Law, University of Leeds.
* Prof. Cliff Manjiao CHI, Law School Xiamen University, Xiamen, Fujian Province, 361005 P.R.C.
* Prof. Abdul Haseeb Ansari, Faculty of Laws, International Islamic University, Kaulalumpur, Malaysia.
* Prof. David Milman, LL.B., Ph.D., FRSA, School of Law, University of Lancaster, Bailrigg Lancaster LA1 4YN.
* Prof. David W. Tushaus, Chairperson, Department of Criminal JusticeLegal Studies & Social Work, Missouri Western State University, Fulbright-Nehru Scholar.
* Prof. KohKeheg-Lian, Emeritus Professor, Faculty of Law, National University of Singapore, Director, Asia-Pacific Centre for Environmental Law, Singapore.
* Dr. Robert P. Barnidge, Jr., Lecturer, School of Law, University of Reading, Reading RG6 7BA.
* Prof. Cheng Chia-Jui, Secretary General of the Curatorium Asian Academy of Comparative Law, Beijing, President Chinese Society of Comparative Law, Professor of International and Comparative Law,Taipei.
* Prof. Paulo Canelas de Castro, Jean Monnet Chairholder - European Union Law, Board of Directors, Association of Studies on the European Union-Macau & Associate Professor, Faculty of Law,University of Macau.
Pandit Madan Mohan Malaviya Ji (The Founder of Banaras Hindu University) (25.12.1861 - 12.11.1946)
32. Srivastava, Ajendra, B.A., LL.M., Ph.D.(Delhi) Professor
33. Srivastava, D. K., B.Sc., LL.M., Ph.D.(Banaras) Professor
34. Tripathi, Bibha, B.A., LL.M., Ph.D.(Banaras) Associate Professor
35. Tripathi, K. M., B.A.(Hons.), LL.M., Ph.D. (Banaras) Assistant Professor
36. Tripathy, Sibaram, LL.M., Ph.D. (Berhampur) Professor
37. Trivedi, Abha Km., B.A.(Hons), LL.M.(Banaras) Associate Professor
38. Upadhyay, C. P., LL.M., Ph.D.(Agra) Professor
39. Verma, D. P., M.A., LL.M.(Dalhousie) Professor
40. Verma, G. P., M.A., LL.M., Ph.D.(Banaras) (Re-engaged) Professor
ADMISSIBILITY OF SCIENTIFIC EVIDENCE: THE LEGAL TESTSR.P. Rai*
: Science and law are coinciding to the admissibility in the civil and criminal process. Present era has witnessed a spate in the use of modern scientific techniques in criminal investigation. Although the legal and ethical propriety of its use has been in doubt, they may in fact be a solution to many a complicated investigation. This article describes how the techniques may be used against an accused scientists has increased since the 1980s, reflecting growing recognition that scientists ‘have a unique contribution to justice system. Scientists, of course, are called as expert witnesses in both civil and criminal cases. A witness qualified as an expert by knowledge, skill, experience, training, or education may testify and offer opinions in court if “scientific, technical, or other specialized knowledge” will assist the Trier of fact to understand the evidence or to determine a fact in issue.
Science advances incrementally by establishing facts and is able to do so “because scientists operate within a framework of incremental adjustments and carefully bounded negotiations among communities who share a commitment to closure. Legal fact finding in the adversary system, however, treats every fact as equally contingent, and each party has every incentive to overstate the weakness in the other’s case. The difference between these two approaches can make it difficult to evaluate scientific opinion in the courtroom.
Key Words: Science, Evidence, Substantial factor, Certainty rule, Proximate Cause Test.
I. INTRODUCTION Science can play a valuable role in the civil and criminal process. The role of scientists has increased since the 1980s, reflecting growing recognition that scientists ‘have a unique contribution to justice system. Scientists, of course, are called as expert witnesses in both civil and criminal cases. Moreover, the range of cases has been broader in some countries than in others. A witness qualified as an expert by knowledge, skill, experience, training, or education may testify and offer opinions in court if “scientific, technical, or other specialized knowledge” will assist the trier of fact to understand the evidence or to determine a fact in issue.
It is rule of evidence that the proponent of the evidence must establish its reliability.
This concept is the basis for all rules for admissibility of scientific evidence. The proponent must demonstrate both that the theory upon which the scientific evidence is based and the technique applying the theory are valid and that the theory and the technique * Professor, Law School, Banaras Hindu University, Varanasi-221005,India.
1 Thornburgh, Junk Science—The Lawyer’s Ethical Responsibilities, 25 Fordham Urban Law Journal, 449 (1998).
10 THE BANARAS LAW JOURNAL [Vol. 42] were properly applied in the particular case. Too often, expert witnesses are hired not for their scientific expertise, but for their willingness to testify, for a price, to say whatever is needed to make the client’s case. As the litigation explosion expands … “junk science is producing junk law.”2 To what extent should the trial court examine the methodological basis of expert scientific testimony is a question for debate?
It is a truism that “error is inherent in research, and [scientific] validity is always conditional.”3 Science advances incrementally by establishing “facts” and is able to do so “because scientists operate within a framework of incremental adjustments and carefully bounded negotiations among communities who share a commitment to closure”.4 Legal fact finding in the adversary system, however, treats every fact as “equally contingent,” and each party has “every incentive to overstate the weakness in the other’s case”.5 The difference between these two approaches can make it difficult to evaluate scientific opinion in the courtroom.
II. THE ELEMENTS OF EXPERT EVIDENCEExpert evidence is a species of the genus evidence. Like all other evidence, expert evidence is only admissible if it is relevant. Even if admissible, it may be rejected other than on grounds specifically relating to its status as expert evidence. The overriding duty of an expert witness is to assist the court impartially on matters relevant to his or her area of expertise. The paramount duty of an expert witness is to the Court, not to the party by whom he or she is retained. An expert witness is not an advocate for a party. In Makita (Australia) Pty Ltd v. Sprowles,6 Heydon JA summarised the applicable law in relation to the admissibility of expert evidence as an exception to the opinion
rule. In summary, if evidence tendered as expert opinion evidence is to be admissible:
(1) it must be agreed or demonstrated that there is a field of “specialised knowledge”;
(2) there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;
(3) the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”;
(4) so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert;
(5) so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way;
(6) it must be established that the facts on which the opinion is based form a proper foundation for it; and the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert, and on which the opinion is “wholly or substantially based” applies to the facts assumed or observed so as to produce the opinion propounded.
The current legal position, with respect to expert testimony, is that, for expert evidence to be admissible in India, it must be “sufficiently well-established to pass the 2 Thornburgh, Junk Science—The Lawyer’s Ethical Responsibilities, 25 Fordham Urban Law Journal, 449 (1998).
3 Relman, A S, Angell M. How Good is Peer Review? New England Journal of Medicine, (1989) 321:827-829.
4 Jasanoff, S, What Judges Should Know about the Sociology of Science, Jurimetrics, (1992) 32: 345-59.
6 (2001) 52 NSWLR 705 at 743-744.
Admissibility of Scientific Evidence : The Legal Tests 2013 11 ordinary tests of relevance and reliability.” That is to say, the expert witness’s evidence must be sufficiently reliable to be fit for a judge/magistrate to consider.
III. RULES AND STANDARDS FOR ADMITTING EXPERT EVIDENCEIt has long been accepted that specialised areas of knowledge, where relevant to the determination of a disputed factual issue, should be explained to the judge by experts in the field because the judge can be presumed to be unfamiliar with such areas. This does something to ensure that the judge does not draw erroneous inferences from the evidence before it and that it is properly equipped to determine how much weight, if any, to give to the evidence to which the expertise relates. It is therefore trite law that witnesses having a relevant degree of expertise are competent to testify on the factual matters which lie within their specialisation, to guide or assist the court in its resolution of the disputed factual issues.
Expert witnesses are a necessary component of the legal system because many claims involve technical facts that would be beyond the understanding of judges and juries without expert testimony.1 Expert witnesses are also pervasive throughout the legal system. Most US state courts now use either the Daubert test, the older test from Frye v. United States7 requiring general acceptance by the relevant scientific community, or a mixture of the two standards.8 However, both tests mistakenly import scientific standards into the fundamentally legal decision of admissibility. This paper critically examines the legal tests of scientific evidence in criminal justice and civil litigation. This paper critically examines the legal tests of scientific evidence in criminal justice and civil litigation.