Engage the Expert Witness more on Procedure less on Substance
A woman allegedly poured kerosene on herself, lit a match, and caused herself a gruesome and cruel death. The husband himself reported the incident to the police. However, the police smelled a rat, investigated and finally filed a charge-sheet against the husband. Prosecution alleged that the husband strangulated her to death with a thick rolled bed-sheet and lit her ablaze to make it look like a suicide. Medical expert witness was called by the prosecution to prove their theory of strangulation.
An expert witness is one who has specialized domain knowledge of the subject under inquiry.
Section 45 of the Indian Evidence Act,1872 deals with opinions of experts. The opinion of an expert is warranted “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”.
Since the expert is opining about his domain expertise, it would be difficult for the defense lawyer to refute his substantive views. However, the procedure adopted by the expert could be challenged by the defense lawyer. For example, in case the expert is deposing about a blood sample, the defense lawyer may dent his opinion by challenging the process used to collect and analyze the said sample. If the correct procedure wasn’t followed, it may compromise the result of the test and consequently the opinion of the expert. Therefore, a strategy to only ask questions that may seek a limited but favorable reply for the defense should be adopted in the cross-examination of the expert.
Expert evidence only has corroborative value. If the theory of the prosecution is inconsistent with the expert evidence, the defense lawyer could get his client acquitted. Nevertheless, if the expert medical evidence corroborates the version of the prosecution, it could get onerous for the accused. In the instant case, the medical expert stated that the ligature mark was about 0.4cm thick. The defense lawyer knew that a thick rolled bed-sheet would leave a much wider mark, but he preferred to not ask any further questions. He gave a suggestion that the said medical report is dubious and false. A suggestion is essentially the defense taken by the accused. Further probing the expert on the thickness of the ligature mark could have alerted the expert witness to explain and support the thinner ligature mark. It could have harmed the case of the accused. Having stopped questioning there, the testimony of the expert witness would not be able to corroborate the version of the prosecution, as there would be no further explanations available during the trial.