THE ROLE AND THE ROLE AND RESPONSIBILITIES OF AN RESPONSIBILITIES OF AN EXPERT WITNESSEXPERT WITNESSDr Leon WagnerDr Leon Wagner MB ChB MMed(Med Forens) UOFSMB ChB MMed(Med Forens) UOFS waggiesforensic.bfnmcc.co.zawaggiesforensic.bfnmcc.co.za 08255835630825583563THE NEED FOR AN EXPERT THE NEED FOR AN EXPERT WITNESSWITNESS Science and technology have a profound impact on society as well as social policy. The law, as well s society at large, is constantly assimilating new technology and evolving scientific theory and practice.In the Courts there is an ongoing struggle to place and understand the new applications of technology and to establish the accepted standards of practice in the various professional fields.The need in South Africa and worldwide for competent, unbiased and effective Expert Witnesses who can help the Courts to do their work more effectively, is growing.The Expert Witness plays an important role in society, for if the Courts are provided with inaccurate or misguided technical analysis and/or interpretations, it is inevitable that the execution of justice will suffer accordingly. For if bad/untrue science becomes incorporated into legal opinions, the nature of legal procedures can perpetuate it for a long time leading inevitably to bad law and poor decisions.For Justice should always be the truth in action based on sound scientific principles.Definition of an Expert Witness:There are two types of witnesses:1)Factual Witness2)Expert WitnessThe factual witness will testify to what they personally did, say, see or do.An Expert Witness is used when information is expected to be of a scope beyond what the layman would likely know. Therefore the Expert witnesss qualifications has to be qualified before testifying. An Expert Witness will offer opinions based upon his/her training, scientific knowledge and experience.If you are involved in any sphere of Forensics, then part of your job will be to act as an expert witness. It is imperative that any laboratory data be presented as qualified findings, especially in an adversary setting. If data cannot be introduced as evidence or the significance thereof be explained by an expert witness, it is basically forensically worthless!The basic parameters to define an expert witness - according to the Rules of evidence for USA Courts and Magistrates - can be summarised as follow:“If scientific, technical, or other specialised knowledge will assist the Trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, training, or education, may testify thereto in the form of an opinion or otherwise, if:(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and(3) the witness has applied the principles and methods reliably to the facts of the case.THE LAW OF EVIDENCE:Overview:In an civil proceeding, the issues in a lawsuit are defined by the pleadings ( the complaint and answer), any formal stipulations or admissions, and the applicable law. Sometimes the parties agree on all or most of the facts but disagree on what the facts mean in respect to the law. Usually, the law is clear but the parties disagree on the facts.Establishing facts that are in controversy requires the production of evidence. An experts testimony is evidence. The law of evidence is a body of legal rules and proceedings that defines what is admissible and what is not, what is prejudicial and what is fair practice and procedure.BURDEN OF PROOF:Whether it is a simple case of shoplifting, a homicide, a regulatory violation, a malpractice case, there are essential elements which need to be established by the party who carries the burden of proof.The burden of proof rests upon the parties to an action to persuade the magistrate/judge that an element of the case asserted by a party to the action is true.It is necessary for the State prosecutor and/or the Defence lawyers and ultimately the magistrate/judge to determine which party has the burden of proof with respect to each issue The burden of proof is determined before a trial and remains upon the same party throughout the trail.For example: A Driving under the influence (DUI) case: The State Prosecutor states that the Accused had exceeded the statutory Blood Alcohol Concentration (BAC) = burden of going forward first.Now the burden of going forward shifts to the Defence. The Defence can introduce evidence that the BAC was incorrect, that the sample was incorrectly taken, that the sample was not analysed correctly or that the Accused was not impaired.The seesaw shifting of the burden of evidence of going forward is more evident in civil cases where there is a lower degree of evidence requires to sustain or establish an issue.DEGREE OF EVIDENCE REQUIRED TO SUSTAIN THE BURDEN OF PROOF:1)Beyond a reasonable doubt:In a