Opinion of Third Party When Relevant
Opinion of Third Party When Relevant
Opinion of Third Party When Relevant
EXCEPTIONS
While this is the general rule, it will have to be admitted that it operates
within narrow limits. The exceptions to the rule are more prominent than the rules
itself. Indeed, the Evidence Act, without stating any such rule, states only the
circumstances in which evidence of opinion is relevant, though of course, it
amounts to a tacit acknowledgement that in other cases opinion is not relevant.
The reason why the rule has often to be relaxed is that in many matters of
technical nature opinion of experts does help the Court to arrive at a satisfactory
conclusion and in many cases facts and opinion are indistinguishable. The
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following observation of an American Judge is pertinent:
It is a good general rule that a witness is not to give his
impressions, but to state the facts from which he received them, and thus
leave the jury to draw his own conclusions. But every man must judge of
external objects according to the impressions they make on his sense; and
after all, when we come to speak of the most simple fact which we have
witnessed, we are necessarily guided by our impressions. There are cases
where single impressions is made by induction from a number of others
as, where we judge whether a man is actuated by passion, we are
determined by the expression of his countenance, the tone of his voice, his
gestures and a variety of other matters; yet a witness speaking of such a
subject of inquiry would be permitted directly to say whether the man was
angry or not. Wherever the facts from which a witness received an
impression are too evanescent in their nature to be recollected, or are too
complicated to be separately and distinctly narrated, his impressions from
these facts become evidence.
When the Court has to form an opinion upon a point of foreign law or of
science or art, or as to identity of handwriting or finger impressions the opinions
upon that point of persons specially skilled in such foreign law, science or art or
in questions as to identity of handwriting or finger impressions, are relevant
facts.
Such persons are called experts.
Expert Opinion
“The Courts have been accustomed to act on the opinion of experts from
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early time.” The reason is obvious. There are many matters which require
professional or specialized knowledge which the Court may not possess and
may therefore, rely on those who possess it. For example, when the Court has to
determine the cause of a ship-wreck or an air-crash, there may be many
technical causes behind it and, therefore, the Court will need the assistance of
technicians, they being better acquainted with such causes. Folokes v. Chadd 9 is
an early authority on this aspect.
The word “science” does not merely mean subjects of science study or
“art” subjects of fine arts. “The words ‘science, or ‘art’ include all subjects on
which the course of special study or experience is necessary to the formation of
opinion. “14 FIELD in his oft quoted passage, says:
The words ‘science’ or ‘art’ are to be broadly construed, the term
‘science’ not being limited to higher sciences, and the term ‘art’ not
being limited to fine arts but having its original sense of handicraft,
trade, profession and skill in work which, with the advance of culture
has been carried beyond the sphere of the common pursuits of life
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into that of artistic and scientific action.
No expert can be permitted to speak on a matter with which the
judge may be supposed to be equally well acquainted.
When the Court has to decide upon the identity of the handwriting of a
certain person or the identity of a certain person’s finger impression, the Court
may receive the evidence of a person who has acquired an expertise on the
matter. Apart from persons possessing professional qualification on the subject,
the Court may receive the evidence of a person who is otherwise acquainted with
the subject.
The Honourable Supreme Court has laid down in quite a few cases that
the evidence of an expert as to handwriting is only in the nature of an opinion and
it can rarely, if ever, take the place of substantive evidence. It should be
corroborated either by clear direct evidence or by circumstantial evidence. Such
evidence cannot be conclusive by itself. The evidence of handwriting expert
unlike that of a fingerprint expert, is generally of a frail character and the Court
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should be wary to give too much weight to it. Following these observations the
Honourable High Court of Allahabad rejected the opinion of an expert that a
marriage certificate was not forged as against the opinion of the experts of the
Government Forensic Laboratory, 17 that it was forged.
Other Technical Matters.
Typewriting could have been regarded as a matter of “science of art” just
as the evidence of ballistic experts is admissible as a matter of “Science or art.” It
has been held by the Honourable Supreme Court in a number of cases that a
“ballistic expert can give evidence to assist the Court to establish (I) the kind of
weapon used; (2) the distance from which the shot was fired; (3) the direction of
the fire and the relative position of the victim and the assailant; (4) whether it was
a case of accident, suicide or murder and (5) the identification of the weapon
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used”. Evidence of dog tracking should also be admissible as a scientific
evidence. 19
Value of Expert opinion
The weight that ought to be attached to the opinion of an expert is a
different matter from its relevancy. The act only provides about the relevancy of
expert opinion, but gives no guidance as to its value. The value of expert opinion
has to be viewed in the light of many adverse factors. Firstly, there is the danger
of error or deliberate falsehood. “These privileged persons might be half blind,
incompetent or even corrupt.20 Secondly, his evidence is after all opinion and
“human judgment is fallible. Human knowledge is limited and imperfect.” 21. No
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man ever mastered all the knowledge on any of the sciences.” Thirdly, it must
be borne in mind that an expert witness, however impartial he may wish to be, is
likely to be unconsciously prejudiced in favour of the side which calls him”. 23 It is
on the basis of these factors that it has been remarked of an expert that “the
witnesses now in worst repute are called expert witnesses-that is, witnesses
retained and paid to support by their evidence a certain view on a scientific or
technical question.”24
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These factors seriously reduce the probative value of expert evidence.
The reliability of such evidence has, therefore, to be tested the same way in
which any other piece of evidence is tested. The Court should, therefore, call
upon the expert to explain the reasons for his opinion and then form its own
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opinion whether or not the expert opinion is satisfactory. The court should not
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surrender its own opinion to that of the expert.
An expert may give evidence of the experiments conducted by him for the
purpose of forming his opinion. By looking at the grounds the Court can
determine the soundness and credibility of the opinion and, therefore, from this
point of view the grounds are specially important, and as such, relevant.