When the Expert Turns into a Witch: Use of Expert Opinion Evidence in the Ethiopian Justice System
Posted: 24 Apr 2018
Date Written: April 4, 2018
Judicial litigations are of facts and of law. Matters of fact are matters of evidence. Those facts that may be proved by witnesses come into forms - facts in respect of which the witness may have personal experience and facts that may be proved by opinion evidence. Opinion evidence further comes in two forms - opinion evidence of lay witnesses and of experts. The subject of this article is expert opinion evidence.
Judges are called upon to dispose facts of every sort. Where the determination of a fact requires expertise the court needs the assistance of an expert on the subject. Expert opinion evidence has to be relevant to the fact in issue and must not be otherwise inadmissible.
In order for the court to effectively use expert opinion evidence for the proper determination of facts, there are three fundamental requirements. First, the subject matter must be suitable for expert opinion. A subject matter is suitable for expert opinion evidence because it is scientific or technical or it requires otherwise specialised knowledge. Whether a fact is a subject matter of expert opinion evidence is determined by the law or by a decision of the court. In few cases, the law expressly provides for whether the fact needs to be proved by expert opinion evidence as in the case of criminal responsibility. Where the law does not so provide for and the court believes the subject matter calls for expertise, it may require that assistance of an expert. In many other cases the parties produce expert opinion evidence.
Second, as the expert opinion evidence is based on the personal professional competence of the expert, the said person must possess the relevant expertise. Third, all the constitutional and procedural requirements, such as, the right to confrontation of the witness and test of reliability the testimony, must be complied with.
The rules regarding the use of expert opinion evidence are meant to help the court have control in the use of such expertise by properly examining the competence of the expert, the reasoning process and that the finding is a product of such specialised knowledge of the expert.
It is only stating the obvious that the practice of utilisation of expert opinion evidence in Ethiopia is extremely poor. Many of the expert opinion reports presented to the court are not relevant to the fact in issue; substantial numbers of the reports are otherwise inadmissible while still others are not reliable. Therefore, the discussion on the current state of affairs regarding expert opinion evidence is made with a view to making better use of such evidence.
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