An expert is a professional and a skilled worker in a given field. His testimony in court of law is an informed opinion that carries evidential or judicial weight. He or she can be an expert by virtue of academic qualification, vocational experience or both, which distinguishes him from other, ordinary witness before the court.
For instance, his researched works and exceptional experience may be desired by the court in order to establish the veracity of contentious document before the court (e.g. authentic or fake papers, signatures); reconstruction of accident scene or occurrence (whether mechanical, staged or otherwise); medical forensics, computer hacking or cybercrime, etc.
An expert witness is, procedurally, a witness of the court and not a witness of the party who summons him/her. Hence, his /her primary duty is to the court and not the parties. In arriving at his or her conclusion, he may perform independent examination and review evidence already admitted by the court before forming his opinion on the same.
Using medical pathologist as a case, his skill, certification, training and experience help the court to reach equitable verdict. In order to cross examine an expert witness, therefore, these professional factors or attributes are strategically ‘’attacked” separately. Perhaps to be frugal with the time and patience of the judge, cross examination of these professional elements can be limited to his qualification and credibility.
As a counsel who is bringing the expert witness to court, it is expedient to have an upfront, pretrial briefing and on the court proceedings and procedures, rules of evidence and , where necessary , requisites of laying proper foundation for admissibility of certain evidence such as computer produced documents as enshrined in Section 84 of the Evidence Act. See, Also Sections 68 and 101 respectively.
For the educated but “unlearned” (apology), cross examination is the interrogation of a witness by the adverse party. It comes after examination – in – Chief and before re- examination, if any.
Cross examining beyond any reasonable doubt, is the greatest legal engine ever invented for the discovery of truth. Although all experts or professional are not easy to cross examine, medical experts are more difficult for obvious reasons. Yet, a diligent counsel can successfully cross examine the experts and impeach the veracity of their credibility when, inter alia, the scientific basis of the expert opinion , not really the witness , is challenged on proximate cause, having been well acquainted with the medical subjects, scientific terms, applications and implications of the case subject.
For a profuse cross examination of an expert witness, a counsel should endeavor to do the following:
1`. Carefully peruse and minutely digest the report, document, etc., and orderly be short in conducting the cross examination;
- Develop a theory or, possibly alternatives to his anticipated professional opinion, with forensic authorities;
- Attack potential biases or informed sentiments in either his opinion or his qualifications;
- Sheepishly present professional assumptions as trite facts even as, if possible, the plain truth; and,
5. Stay on the issues, do not damage your case or help the opponent to build his case from your negligent mistake.
Following from the above, it is generally believed that legal, medical and healthcare practitioners, accountants or audits may learn a lot in preparation for and modus operandi of giving or extracting evidence in courts of law.
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