Getting to grips with evidence
November 15, 2012
[Originally Published 18 June 2012 – For The Law Society Advocacy Section]
Clifford Miller, a solicitor and a former university lecturer, considers modern evidential practice and some new proposals for evidence put forward by the Law Commission.
If you find evidence, its legal rules and how to apply them confusing, you are in good company. The logic can appear tortuous, but mastering it can sometimes make the difference between success and failure on decision-turning facts.
The problems with evidence are compounded by the growth in and need for complex technical, scientific and medical evidence in the modern technological world. As lawyers, we need to be equipped to deal with expert opinion evidence. An expert opinion can now be decisive on the ultimate issue.
The need for change
The philosophical and theoretical bases underpinning modern evidential practice and procedure in the English courts have long been in need of attention. About 20 years ago in his compilation of exploratory essays, Rethinking Evidence (Cambridge University Press), William Twining made a compelling case for a renewed and new approach to the study of evidence, proof and fact-finding in law, recording how evidence scholarship has been, at best, fragmented and spasmodic. Twining noted how Bentham’s Rationale of Judicial Evidence and Wigmore’s Principles of Judicial Proof rank among the major achievements of our scholarly heritage, yet have been largely ignored.
Since Twining published Rethinking Evidence, other writers, including Susan Haack and Dr Déirdre Dwyer have been addressing the same issues. Additionally, the Law Commission proposed last year a new reliability-based admissibility test to be applied to most expert opinion evidence tendered for admission in criminal proceedings. The Commission also proposed a rule that expert opinion evidence is admissible only if the court is satisfied that it is sufficiently reliable to be admitted. See the Law Commission Report No 325 on Expert Evidence in Criminal Proceedings in England and Wales (agreed text 21 February 2011).
These proposals follow from the experience in the US of the ‘Daubert rules’. US judges are now ‘gate-keepers’: they are expected to allow the admission of reliable scientific and technical evidence, and to exclude the unreliable before it goes before a jury. The Daubert rules have had a mixed reception in the US, and raise questions that have not been properly dealt with.
However, proposals of these kinds are considered by many to be a ‘sticking-plaster’ approach to the underlying issue: the need for better developed skills and knowledge necessary to deal effectively with complex scientific and technical evidence in court. And achieving that aim clearly remains some way off.
Clifford Miller BSc ARCS is a solicitor, a former university lecturer in law, at a College of London University, and a published academic on complex technical and medical evidence.