Wednesday, 4 December 2013

Admissibility of Forensic Linguistic Evidence in Malaysia

According to The Forensic Linguistic Institute, forensic linguistic is the study, analysis and measurement of language in the context of of crime, judicial procedure, or disputes in law, including the preparation and giving of written and oral evidence. Also, the institute described forensic linguistic as "the study of any text or item of spoken language which has relevance to criminal or civil dispute, or which relates to what goes on in a court of law, or to the language of the law itself." Thus, the linguist may be called upon to analyse a very wide variety of documents, for example, agreements relating to ancient territorial dispute, the quality of court interpreting, a suicide note and etc. 


There is no specific provision with regards to forensic linguistic expert in the Evidence Act 1950. But, the general provision relating to the relevancy of expert evidence is covered under the Section 45 of the Evidence Act 1950 which states that "When the courts has to form an opinion upon a point of foreign law or of science or art, or or as to identify or genuineness of handwriting or finger impressions, the opinions upon that point of persons especially skilled in that foreign law, science or art, or in questions as to identify or genuineness of handwriting or finger impressions, are relevant facts; such person are called experts." The question that arise is where is the place for forensic linguistic expert in this provision as there is no specific category for forensic linguistic? 

Based on Field's Expert Evidence, the term "science" or "art" must be interpreted widely. Also, Article 49 Stephen's Digest of the Law of Evidence, the words "science" or "art" include all subjects on which a course of special study or experiences is necessary to the formation of an opinion, and among others the examination of handwriting. In the case of Chandrasekaran & Ors v PP, the court had held that "The expression 'science' or 'art' is elastic enough to be given a liberal interpretation." Thus, based on the authorities given, clearly forensic linguists are experts in 'science' or 'art'. Their evidence is relevant under Section 45 of the Evidence Act.


The general principle is that as long the evidence is relevant to the issue, it is admissible. As evidence of forensic linguists is relevant under Section 45 of the Evidence Act, thus it is admissible. The role of expert can often be misunderstood and particularly by the laymembers of a party's management. The lack of impartiality of expert witnesses is a major problem. In the United States, the slang term for expert witnesses is 'saxophones'; the lawyer hums the tune and the expert witness plays it like a musical instrument. The problem is that the adversarial system discouraged a cooperative approach between opposing experts. It does not encourage parties to agree upon a single expert who would act on the instructions of all parties and be cross-examined by all parties. Instead, each parties engages its own expert.


To date, there are no guidelines or standard for Malaysian courts in determining the reliability of forensic linguistic evidence. Thus, Malaysian courts need a standard to admit the forensic linguistic expert evidence because the court does not have a proper guidelines to assess the reliability of expert evidence in Malaysia. Guidelines can help the court to assess and scrutiny the evidence presented by the forensic linguistic expert. 


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