Wednesday, 13 November 2013

What it means to be good enough?

"Trials would be very short if only perfect evidence were admissible"

   These were the words uttered by Posner J. in the case of Indianapolis Colts v Metropolitan Baltimore Football Club [34 F.3d 410]. This quote was referred to in the Reply Essays by David L. Faigman, David H. Kaye, Michael J. Saks and Joseph Sanders against accusations from Professor Edward Imwinkelried. The title of the Reply Essays is HOW GOOD IS GOOD ENOUGH?: EXPERT EVIDENCE UNDER DAUBERT AND KUMHO which discussed the reliability of an expert witness and how to measure the fitness of such opinion to a certain circumstances in a particular case under the Western Law. However, I would like to compare their arguments and the practise herein Malaysia in present. 

            "if one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles have some universality, the expert could apply general principles to the case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be qualified to testify, as long as he was familiar with its component parts.
           On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable expert witness if a proper foundation were laid for his conclusions. The foundation would not relate to his formal training, but to his first-hand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have.

   There were two arguments alleged in which the writers only agreed to unequivocally to the first accusation. The accusation was regarding the 'best evidence' rule that does not exist in the meaning as such to portray that no other evidence can topple it over as it being the best evidence available. Hence, the writers argued that by meaning to say such 'best evidence' rule is unwise thus it was for the judges to determine which is the best evidence. Hence, if such rule persists it shall be a good ground to worry. The writers actually used the analogy portraying the court as a purchaser that is entitled to good and quality goods thus meaning to say it is for the court to decide.

   On the second accusation, there was a conflicting view between the learned writers and Professor Imwinkelried. The weight of such opinion given by the expert in the writers view shall be questioned when it seemed to be dubious. This indirectly imposes the burden for the court to ascertain such opinion is legit or not in prosecuting the case fairly. Therefore, the question of how much better is good enough for the expert opinion to be admissible in court?

   The learned writers sum it up to question whether a person with experience shall be called instead of a scientist who studied the particular subject in matter. This matter was in pursuant to the case of Daubert v Merrell Dow Pharmaceuticals, Inc.[509 U.S. 579 (1993)]. This is because in this case the court argued that it is sufficient for the experienced ones to be called instead of the scientists based on the first-hand experience of the doer whilst the scientists only deal with lesser of that object than the experienced ones. However, it is still subject to court discretion by letting the witness's own characterization determine whether it was science.

   Different approach was taken in the case of Kumho Tire Co. v Carmichael[26 U.S. 137 (1999)] where the court applied the approach of the Eleventh Circuit which deemed that if the expert did not testify about scientific research, then it was not a "scientific evidence". The test as to what amounts to scientific testimony can be review on the aside of Seventh Circuit in Berry v City of Detroit[25 F.3d 1342 (1994)].The court held as follows:

Returning back to the actual argument as to whether such weightage shall be put upon the most experience ones or the scientist? In this essay the conflict remains and argued based on two cases, that is the Daubert's case and the Frye's case. This is because the principle put forth in both cases is of the opposite. For instance in the Fyre's case the principle was that the court shall do whatever the experts told so to do. 

   Meanwhile, in the Daubert's case the principle is that the court shall find out for itself whether there is science to be considered before proceeding with the verdict. However, both cases do not neglect the need of expert evidence in certain situation. The only conflicting view is that to what extend is an opinion of an expert is good enough to affect the verdict of such fair case since there is and never will be the rule of 'best evidence' that cannot be topped by anything, in other words perfect evidence.

  When it comes to application of such expert evidence in Malaysia it is almost the same as the United States since this article was picked from the Case Western Reserve Law Review. Only when such need arises to assist the court in decision making the court may call upon such expert to testify and use their opinion as mere guidance. This is because the opinion given by expert may then form part of the relevant facts. This was then decided in the case of Syed Abu Bakar B. Ahmad v PP [1984] 2 MLJ 19. 

   The same issues are present, regardless the agreed facts that only an expert trained in a specific field can give opinion as an expert witness as per the case of Dato' Mokhtar Hashim v PP[1983] 2 MLJ 232 the question of weightage still persist. However, the case of PP v Muhd. B. Sulaiman [1982] 2 MLJ 320 cleared the doubt by concluding that:

"...while the expert must be skilled, he need not be so by special study, he may be so by experience, and the fact that he has not acquired his knowledge professionally merely goes to weight and not to admissibility."

   Hence, the weight of such expert witness shall depends on the requirement on case to case basis as in the case of Junaidi B. Abdullah v PP [1993] 3 MLJ 217. This means the heavier the burden to prove then the deeper will the court be required to enquire into the ascertainment of his qualification and experience on the particular field concerned. Despite such reliance, that does not impose to compel the court to decide as such in the case of Fyre in the earlier paragraph. This rhymes with the decision put forth in the Daubert's case which the applicable case in Malaysia would then fall to the case of Wong Swee Chin v PP [1981] 1 MLJ 212.

   In conclusion, what amounts to good enough is very much subjective. However, the rule of perfect evidence would never be in existence and the phrase ' best evidence' shall be read and understood as the best evidence available but not perfect for the judges to ascertain accordingly. Hence, more or less the application of the rule on expert evidence in Malaysia is somehow similar but differs in their own way with ones of the United States. Besides, the conflicting principles in Daubert's and Frye's case is seen to be equivalent to the conflicting views in Bolam v Friern Hospital Management Committee[1957] 1 WLR 582 and the case of Foo Fio Na V. Dr Soo Fook Mun & Anor [2007] 1 MLJ 593. Evidently, the Bolam's principle had been overwritten by the Foo Fio Na case which then results in the same principle as such in that of the Daubert's. This means that the level of weightage depends on the court to judge and the court will not act as instructed by the expert although the admissibility will not be affected by weight carried by such testimony made by the expert witness. The court as it will always be independent to decide according to justice and fairness.


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