Art vs Craft

Expert Evidence in the England and Wales Criminal Justice System

Resumo

Standards for expert testimony in England &Wales have long been described
as laissez-faire and in desperate need of reform, with decisions about admissibility
being left entirely to the trial judge (Turner 2009) and numerous calls
for legislation going unheeded. Rules for the methods and content of an expert’s
written and oral evidence therefore derive entirely from common law together with
the publications of the Forensic Science Regulator (FSR). With extensive reference
to a recent murder trial involving determining the meaning of a particular Urban
British English lexical item where I had the rare opportunity to watch an opposing
expert in action, this paper discusses current requirements and the obstacles these
may present for the delivery of justice. The implications of admitting expertise in
the form of unstructured, unquantiable art alongside that which adopts a rigorous,
replicable craft-like approach are drawn out in relation to this case and to the
law as it stands. The paper concludes with a two-pronged solution for addressing
these issues. Firstly, a dedicated training programme or system of guidance to
enable judges to identify reliable expertise is proposed. Secondly addressing the
‘widespread ignorance’ (Heydon 2020) in the legal system of lesser-known elds
of scholarship (such as forensic linguistics) is identied as a key strategy for improving
standards of expert evidence.