Section 45 to Section 51 under Chapter-II of the Indian Evidence Act provides applicability of opinion of third persons, which is commonly called as expert’s opinion.
An expert witness is mainly used in common law countries such as United Kingdom, Australia, and United states. One who is specialized in a field that is similar to the field of evidence found and can give an opinion about it, is an expert witness. It gives advices, opinions on the case with respect to its specialization. It all depends on the judge, he may or may not consider the experts opinion.
Honourable Supreme Court in the case of Ramesh Chandra Agarwal v/s Regency Hospital Ltd. has largely dealt and construed the scenario and held that, an expert is a person who dedicates his time and study to a special branch of learning. Though, he might have developed such knowledge by practice, reflection or careful training.
An expert’s opinion is required for judge and jury to understand complicated evidence that may need some specialized skills to comprehend it, here the witness comes in play and explains all the essential details of evidence.
It makes the work of judges as well as jury simpler.
Courts have significantly evolved since past decade with respect to expert’s opinion as an evidence in cases. Earlier experts’ opinion was only allowed in cases requiring medical attention but now with the evolution of variety of cases presented in front of the court experts opinion are considered in every case.
An expert’s opinion plays substantial role in rape and sexual abuse cases, where a medical practitioner who performs obligatory test is called before judge to give his opinion as an evidence to case. Opinion of medical practitioner thus plays an important role as evidence in judgement of a rape case and medical practitioner plays the role of an expert witness.
Experts opinion pre-trial
Pre-trial an expert should meet the selection criteria as an expert witness that judges set. It is the judge to select the expert. An expert is asked to qualify for testimony before trial for necessary skills and experience required to evaluate the evidence. Professional chambers and firms sometimes have a register of experts. It is possible to refer to those registers for the selection and appointment of an expert. In unusual circumstances one can ask these chambers and organisations to make one or more ideas for experts to the court. This is important where there are questions concerning uncommon and infrequently investigated areas of expertise. However, there is no obligatory effect to those ideas.
After the proper qualification process, expert needs to write a report regarding the information they will be giving out in court, one needs to submit the report to the other part at least 84 days prior to trial date.
An expert witness at the time of trial is capable by the court and must be re-qualified each time that person comes to trial for the contribution of opinions. The qualification is given by each trial judge and takes place irrespective of preceding appearances by a particular expert witness. Expert witnesses are those whom the court has considered qualified to speak on a topic to deliver background to anyone on the jury.
The court will generally demand that the experts are to meet before the trial date in order to confer the issues in argument and which they have not agreed upon. In smaller cases these meetings take place on calls instead of a face-to-face meeting. Succeeding this meeting the experts should give a joint statement setting out the issues on which they agree and the issues of argument, including the reasons for such disagreement.
An expert is required to carry out tests on evidences found in the respective case and if not expert then its assistance shall carry out test but it should only be under expert’s guidance.
An expert witness is required to sign off the evidence tested by him or tested by his assistance. In case of assistance, expert needs to be following up on every procedure held by assistance.
Rules are mandatory to be followed by expert witness as their opinion shapes the thinking of judge and jury in cases.
Before a trial is started, it is made sure that the expert is not appointed by either of the party, as that will lead to impartiality towards the appointing party and it is mandatorily required for the expert’s opinion to be unbiased and evidence from the expert is required to be un adulterated and no information shall be hidden from opposing party that means there should be full disclosure of information revealed in testing of evidences. The expert witness is required to aim all material guidelines in his expert report. These guidelines shall not be protected by any privilege.
In the end, it is to be made sure that expert is thoroughly introduced to rules and guidelines mentioned in the statutes.
Experts opinion during trial
After qualification of experts through required selection process, expert is asked to testify in front of the judge and jury. Here, responsibility of an expert is to evaluate potential difficulties, errors, deficiency, flaws in the provided evidence and not to influence judges and jury to hold a judgement in one’s favor. Typically, experts are trusted on for opinions on strictness of injury, degree of saneness, reason of failure in a machine or other device, loss of earnings and associated benefits…etc. In an intellectual property case, an expert may be shown two music notches, book texts, and asked to determine their degree of resemblance. In the majority of cases, the expert’s personal relation to the defendant is measured and usually pronounced to be inappropriate. An expert can be excused of his appearance in court during trial and can provide his opinion and testimony through reports until and unless he is specifically asked to be present during trial.
An expert can only give evidence at the Trial that too with the permission of the court. Generally, such permissions are easily given. Experts do not have immunity from a claim for negligence or breach of duty resulting out of their preparation and presentation of evidence for the resolution of court proceedings, nonetheless an opposing party cannot bring a claim in contradiction of an expert. If lawyer from either side is not satisfied with the explanations and observations by expert witness, they can cross examine the witness under the grounds mentioned in the statutes. They can ask questions about their qualifications, facts observed for making an opinion, process followed… etc.
The court is said to have full powers regarding admissibility of evidences provided by experts. The opinion can be accepted or rejected. Expert is not qualified to affect the facts of the case in majority of the cases, it is seen as just an opinion and not as facts for the testimony as it is considered to be an Opinion evidence. Factual evidence is always given priority over opinion evidence. Opinion evidence cannot be taken as substantive evidence. Sometimes in cases where medical practitioners are required opinion evidences turns out to be a factual evidence. For example, in rape cases where reports provided by expert gives out facts of the case regarding whether one has suffered through injuries or not. In other cases where eye witness is present, priority is given to eye witness over expert witness. No expert in trial can claim to be perfectly sure about its advice as it only depends upon the materials provided to him. The weightage of evidences lies completely upon the courts and its authorities.
Court has laid some guidelines in the following cases regarding admissibility of experts’ opinion;
- State of Maharashtra v/s Damus/o Gopinath Shinde and others, AIR 2000 SC 1691: Here court held that opinion cannot be admitted until and unless it has the reasons and mentioning of the data through which the opinion has been derived. Even if such evidences are admitted it cannot be considered during trial.
- Kabul Singh v/s Gurinder Singh: In this case expert provided an irrelevant opinion to the court where court held that experts should comply within the facts provided to give out its opinion.
- S. Gopal Reddy v. State of A.P. AIR 1996 SC2184: It was held that it is not benign to depend upon expert evidence without looking for an independent and consistent justification.
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