Chapter 11: Evidence before the Ad Hoc Tribunals
309
certificates. With regard to the on-site report, the Trial Chamber however held that
‘[a]ny assumptions or conclusions which are expressed in this material will be
disregarded by the Trial Chamber and will not form part of the record of evidence
which it will consider in determining the innocence or guilt of the accused’.
121
Thus, the Chamber refused to admit a ‘Dossier’ as a whole without examining
the materials independently. This is an encouraging approach. In cases where the
person filing the report is perceived as an expert witness, the approach is totally
different, although expert reports rely as much on hearsay evidence as investigators’
reports. The approach in relation to expert reports is analysed below.
11.8 EXPERT EVIDENCE
At common law a witness cannot make a value judgment or express an opinion.
The reason for this prohibition of value judgments or opinions is that the fact finder
is to draw his own conclusions on the facts brought before him; the witness should
not replace this function of the fact finder.
122
An exception applies with regard to
experts who can give their opinion within the limits of their expertise. If a person
qualifies as an expert on the basis of his professional qualifications or expertise, which
requires special skills and knowledge, and the expert’s opinion is likely to be outside
the experience and knowledge of a judge or jury, the opinion may be admitted into
evidence.
123
If judges or jury members can form their own conclusions on the facts
without the assistance of an expert opinion, such opinion is irrelevant and therefore
not admitted into evidence.
An important rule is the ‘ultimate issue rule’: the expert cannot testify as to the
guilt of the alleged perpetrator.
124
Another important rule is that an expert cannot
express the opinion of another expert or assistant-expert (primary facts). It is however
permitted to rely on the opinions of other experts to make up one’s own opinion
(expert’s facts). It is very difficult not to rely to some extent on hearsay evidence, as
the expertise is normally based on someone else’s expertise.
125
121
Ibid,
para 32. The Trial Chamber repeated this reasoning in relation to the remaining categories of
evidence (i, ii, vi, vii) (paras 34, 36).
122
R v Robb
(1991) 93 CrApp R 161; CAllen,
Practical Guide to Evidence,
2nd edn, 2001, London: Cavendish
Publishing, pp 307–16.
123 In
R v Silver Lock
[1894] 2 QB 766, handwriting was considered to be an expertise on the basis that it
required special skills and knowledge. See also
R v Turner
[1975] QB 834,
per
Lawton LJ, and
R v
Robb, ibid
.
124 See however the English case
R v Stockwell
(1993) 97 Cr App R 260, where it was found acceptable
for an expert witness to give his opinion on an ultimate issue, such as identification, provided
the judge directed the jury that they were not bound to accept the opinion. See also US Federal
Rules of Evidence, r 704(a), which states: ‘Except as provided in subdivision (b), testimony in
the form of opinion or inference otherwise admissible is not objectionable because it embraces
an ultimate issue to be decided by the trier of fact.’ Rule 704(b) provides that when an accused’s
mental state or condition is in issue (such as premeditation in homicide, lack of predisposition
in entrapment, or the true affirmative defence of insanity), an expert witness may not testify
that the defendant did or did not have the mental state or condition constituting an element of
the crime charged or of the defence.
125 Under US Federal Rules on Evidence, rr 703 and 705, an expert may give a direct opinion upon facts
and data, including technically inadmissible reports, provided the reports or other data are ‘of a
type reasonably relied upon by experts in the particular field in forming opinions or inferences
upon the subject’. JW Strong (ed),
Do'stlaringiz bilan baham: