Monday, November 17, 2008

EVIDENCE: Experts in civil litigation ...

I've had to return to law school and find out again how expert evidence works. Actually, I already know how it works, but I need to figure out the best manner in which to express this knowledge. Later in the week, I have to deliver a paper on the use of imams as expert witnesses in civil law cases. My main interest is in the area of workplace matters where employers are required to make reasonable provision for their employees' religious requirements. In such cases, you would thinke most imams would be the most logical choice of expert witnesses for either party or indeed the court or tribunal.

My audience will largely consist of non-lawyers. I guess this means I will have to explain the idea of evidence and why we have rules for determining what kinds of evidence a court will allow. In an increasing number of civil jurisdictions, the rules of evidence are applied in a more lax manner.

My starting point has been the following 2 documents:

1. J Burke, Osborn’s Concise Law Dictionary, Sixth Edition (1976) Sweet & Maxwell, London (Burke). I bought this copy in 1994 during a trip to Karachi after having completed my first six months working in a private legal practice. It cost 150 rupees, which in those days approximated to around A$7.

2. DM Walker, The Oxford Companion to Law (1980) Clarendon Press, Oxford (Walker). From memory, this was purchased at the Lifeline Book Fair in Canberra last year.

Some lawyers may be wondering why I'm not using a more specialised text such as Cross on Evidence. The main reason is that I don't have the time to translate esoteric legal textbooks into the kind of English non-lawyers (albeit academics and postgraduate students in Islamic studies) can understand.

The more interesting aspect of this topic is how the rules of qualifying witnesses as experts could apply in the case of imams, a profession who (at least in Australia) have no consistent method of accreditation.

Anyway, here are some threshhold points relating to evidence in general and expert evidence in particular ...

[01] Here is Burke's definition of evidence:

All the legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the proof of which is submitted to judicial investigation ...

[02] Burke includes in his definiton an wide variety of categories, including oral evidence given under oath.

[03] Here is Walker's definition of evidence:

Facts, inferences from facts, and statements which tend to convince a court or other inquiring body that certain facts, the state of which is unknown but being inquired into, are to a certain effect ...

[04] So why have rules of evidence? And what is their effect? Walker writes:

[T]he rules of evidence ... frequently restrict the kinds of evidence which may be adduced. The development of the law of evidence is ... on the whole a movement from reliance on non-rational grounds for decision to rational grounds.

[05] Next comes the issue of how an expert is defined. Burke defines an expert witness as follows:

A person with special skill, technical knowledge or professional qualification whose opinion on any manner within his cognisance is admitted in evidence, contrary to the general rule that mere opinions are irrelevant e.g. doctors and surgeons, handwriting experts, foreign lawyers. It is for the court to decide whether a witness is so qualified as to be considered an expert ...

[06] In some senses, an imam in Australia may be regarded as a foreign lawyer in that he is an expert in a legal system foreign to Australia. Many imams play the role of jurists in that they are consulted for advice on matters pertaining to sharia (Islamic sacred law) and how it might be implemented within an Australian context. Typical areas where this might occur are family law and estate matters. Quite a few Muslims are going to imams with a view to obtaining advice on how their wills are to be drafted. At least one Sydney imam (who is also a qualified solicitor) is marketing sharia-compliant wills.

[07] In what sense is an imam an expert? What special skill, technical knowledge and/or professional qualifications do imams have? And how can we determine whether an imam actually has such qualifications? Is there am agreed upon method for qualifying imams?

[08] Further, are imams necessarily qualified to give expert evidence on all areas of sharia? Does Islamic sacred law have peculiar and discrete areas of specialisation.

[09] Some years back, I read a primer on the Islamic law of estates. The primer was written by a group of South African imams, some of whom were also practising lawyers. One thing I remember from the book was that the law of estates was regarded as one of the most complex and difficult areas of sharia. If this is the case even for sharia lawyers, how much more will this be for Australian lawyers with little sharia expertise? And how much more for judges who must decide on matters involving sharia-compliant wills where the deceased's intentions much be determined with reference to intricate rules possibly external to the testamentary document itself?

[10] Walker defines expert evidence as follows:

Evidence given to a court by a person skilled and experienced in some professional or technical sphere of the conclusions he has reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurements or similar means.

More soon.

Words © 2008 Irfan Yusuf

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