"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.
-AMIRAH ABD. RAZAK
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