Legal Systems and Court Structures

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Legal systems, court structures and expert evidence in the UK and US

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  • May eliminate suicide or counteract defences of self-defence
    Shape indicates direction of impact
    (Cast-off) Spatter analysis – confusion with arterial spurts
    Small droplets (gunshot) = high velocity (travel short distance) indicator of proximity
    Large droplets (punch) = medium velocity (travel longer distance)
  • Nothing in the text of Rule 702 of the FRE, governing expert testimony, establishes general acceptance as an absolute prerequisite to admissibility
    A rigid general acceptance requirement would be at odds with the liberal thrust of the FRE and their general approach of relaxing the traditional barriers to opinion testimony
  • Nothing in the text of Rule 702 of the FRE, governing expert testimony, establishes general acceptance as an absolute prerequisite to admissibility
    A rigid general acceptance requirement would be at odds with the liberal thrust of the FRE and their general approach of relaxing the traditional barriers to opinion testimony
  • Legal Systems and Court Structures

    1. 1. Law and Court Structure Michael Bromby Reader in Law Joseph Bell Centre for Forensic Statistics and Legal Reasoning m.bromby@gcu.ac.uk
    2. 2. Global Systems • Anglo-American (common law) – UK, USA, Commonwealth nations • Continental (civil jurisdiction) – Mainland Europe • Other systems – China, East Asia
    3. 3. United Kingdom • England and Wales • Scotland • N Ireland • Channel Islands – Jersey – Guernsey (inc Alderney) • Isle of Man
    4. 4. Legal System • Public Law – Criminal law – Public order – Judicial review • Private Law – Tort / delict – Negligence – Family law
    5. 5. Criminal Court Structure JP Court (prev. District Court) Sheriff Court High Court of Justiciary Court of Criminal Appeal (HCJ - Edinburgh) --- UK Supreme Court (London) (devolution matters) ECHR (Strasbourg) (Human Rights related) ICC (Hague) (Completely different!)
    6. 6. English Crim Court Structure Magistrates’ Court Crown Court Central Criminal Court Court of Appeal (criminal division) UK Supreme Court (prev. House of Lords)
    7. 7. JUDGE Witness Box Clerk P r e s s Public Gallery DOCK COUNSEL Prosec. Defence SOLICITORS J U R Y
    8. 8. Procedure • Solemn – Accused appears on indictment – by the Lord Advocate ( eg HMA v Smith) – Jury (facts) and Judge (law) • Summary – Accused appears on complaint – by the Procurator Fiscal ( eg Brown v Smith) – Judge (facts and law)
    9. 9. Pleas of the Crown • High Court of Justiciary only! – Murder – Rape – Treason – Incest – Also: • Terrorism • Wilful fireraising • Other serious crimes
    10. 10. Burden of Proof • Advocate Depute Crown Office • Fiscal (Depute) COPFS (regional) • Crown Prosecutor England (CPS Barrister) • DPP NI, Australia • (District) Attorney USA • Crown Attorney Canada
    11. 11. Standard of Proof • Criminal – Beyond reasonable doubt for prosecution – No requirement for defence evidence, but when led is generally the civil standard • Civil – Balance of probabilities
    12. 12. Evidence • Relevancy & Admissibility – Questions of law, for the judge • Credibility & Reliability – Questions of fact, for the jury • Sufficiency – What is a prima facie case?
    13. 13. Evidence • Examination in chief – Main points of evidence (probative value) • Cross examination – Checking of reliability etc • Re-examination – Opportunity to redress any prejudice
    14. 14. Legal Requirements • Actus reus – Commission / omission – “the naughty act” • Mens rea – Intention to commit a crime – “the naughty thought” • Causation – Linking the act to the result
    15. 15. Crucial / Essential Facts • Act or Omission – Both actus reus and mens rea – Inchoate: attempt / incitement / conspiracy • Unlawful – Defences – see next slide – Insanity as a bar to trial • Identification – Eyewitness – Forensics • Corroboration
    16. 16. Defences Justifications, excuses and capacity •Special Defences – alibi, incrimination, insanity, self-defence, automatism, coercion & consent •Other Defences – Diminished responsibility, provocation, intoxication, necessity, superior orders •Complete / mitigating defences
    17. 17. Part 2
    18. 18. Quis Custodiet Ipsos Custodes? (Who’s keeping an eye on the gatekeepers?) Expert Evidence and Legal Safeguards for Identification
    19. 19. Expert Witnesses • Admissibility of Expert Testimony – Frye v United States (1923) 54 App DC 46 • Exclusive ‘general acceptance test’ • Superseded by Federal Rules of Evidence (702) • Attack on authority, not content “In principle, under the Federal Rules no common law of evidence remains. "All relevant evidence is admissible, except as otherwise provided . . . ."
    20. 20. Expert Witnesses • Admissibility of Scientific Expertise – Daubert v Merrell Dow Pharmaceuticals Inc. (1993) 509 US 579 • Falsifiability • Peer review and publication • General acceptance within the relevant academic community • Known (or potential) rate of error • Existence and maintenance of standards
    21. 21. Expert Witnesses • Admissibility of Technical Expertise – Kumho Tire v Carmichael (1999) 526 US 137 • Applies to all expertise, not just scientific • May rely on experience and judgment • Daubert criteria may still be applied in these areas – Joiner v General Electric (1997) 522 U.S. 136 • Judge may reject expert when gaps exist between evidence and opinion
    22. 22. Expert Witnesses • Admissibility of Expert Testimony – UK Approach • Ad hoc admissibility • Often Daubert factors are touched upon in cross- examination • Criminal Procedure Rules regarding expert witnesses in England and Wales (see part 33) • Similar rules exist for Civil Law
    23. 23. Expert Witnesses • Admissibility of identification evidence: – DNA, match probabilities – Fingerprints, 16 point / holistic match – Faces, extent of database – Voice, accent and dialect • Study of comparison • Opinion of probability
    24. 24. Rulings on Types of Expertise • Inadmissible – Provocation - R v Turner (1975) – Likelihood of suicide - R v Wood (1990) – Truthfulness of witnesses - R v MacKenney (1983) • Admissible – Insanity - R v Homes (1953) – Diminished responsibility - R v Bailey (1977) – Automatism - R v Smith (1979)
    25. 25. Which Approach? “[T]he correct approach is to admit such evidence based on hearsay and that the judge has a responsibility to warn the jury as to the flimsy or non-existent foundations of the expert evidence” M. Redmayne
    26. 26. Ultimate Issue Rule • Expert opinion permitted in: – R v Stockwell (1993) • Evidence of identification – Barings Plc (2001) • Professional negligence – The judge and jury are not bound to accept an admissible opinion… • Do they realise this?
    27. 27. Jury Perceptions • White coat syndrome • Number dyslexia • Baffled by jargon, science and law • … and by the judge! • Facts, opinions and alternatives require more separation in court
    28. 28. Improvements • Joint minutes/memoranda of understanding • Written questions and responses • Single joint experts?! • Court-appointed experts and assessors
    29. 29. Legal Safeguards • Corroboration – Not a legal art in E&W, requirement in Scotland for all facts to be independently supported by two sources • Challenge by the Defence – Clash of expert witness opinion; lack of time or finances to retain a second expert
    30. 30. Legal Safeguards • Common-law Submission – Outwith cross-examination, either party may suggest that the evidence is unreliable • Directions to the Jury – Improved judicial knowledge and training in scientific areas is required
    31. 31. Summary • Expert evidence may be useful, but not conclusive or sufficiently probative • Legal safeguards offer some protection, but may not be sufficient either • Responsibility lies with the professional ethics of the expert, and of the judge

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