In this essay, I aim to illustrate how the role of expert witnesses, although clear and defined in theory, remains ambigious in practice by virtue of cultural difference. Whilst there may be legal and procedural rules within which the expert can share his expertise before the court, anthropologists, legal or otherwise such as Roger Ballard, Werner Menski and Prakash Shah, are often marginalised by narrow indoctrinated opinions. As a result, through focusing on 3 cases (H, A & PC) as well as upon legal pluralism, I hope to show how there are much wider and more endemic problems within the system.
The impartiality of an expert witness is paramount as they are supposed to act and give evidence in the courts best interest. Through the sharing of evidence, experts are able to assist judges as to certain facts as well as the nature of legal problems (Shah 2006). This approach is highly useful when one considers that expert witnesses are predictably ‘experts’, highly experienced in their chosen field and often possess resources and skills that judges do not have. An expert forensic witness, for example, is likely to be skilled in forensics and is therefore able to explain the science behind gunshot residue, and link it to an alleged murderer in a trial. The whole legal system is geared in a way to ensure the quick expedient of justice, a judge is capable of focusing on the salient points of each case, and taking the rest at face value.
Furthermore, expert witnesses are also confined by procedural rules, to ensure a fairness of process and ensure that a defendant’s right to a fair trial has not been compromised.
However, it is at this stage that problems start to arise, and the role of an expert witness becomes murkier. In civil cases, both the claimants and respondents are able to appoint their own expert witnesses and pay them for the services. As Menski 2012 argues, there are experts of morally dubious character who favour corrupt practices, and consequently, side with their client rather than align themselves with the best interests of the court. He is also particularly scathing of immigration cases where the Home Office has its own select panel of expert witnesses, something which he feels might be unjust for people who are against the state. When one considers that the state has practically unlimited resources, and is capable of pursuing an individual for a plethora of reasons, some of them occasionally touching on the biased, it is important to remember that the expert witness who can defend the client and illuminate pertinent aspects of their story are incapable of doing so.
Furthermore, if we focus on a particular category of expert witnesses, namely that of anthropologists and legal anthropologists, and the cases of H and PC, it appears that legal anthropologists are frequently ignored.
In the case of H, a prosperous Hindu villager from Gujarat was propositioned by a widow in the UK and subsequently was married in a Hindu ceremony, which was not registered in the British courts. This fact is of crucial importance when understanding this case. He migrated to the UK and for a short period of time, they were blissfully happy. However, when he started to work long hours, they divorced in a Hindu ceremony that was again not registered. When H married again in his village in India and tried to obtain a visa for his second wife, it was turned down. The facts of this case are much longer and more complicated, but it is important to remember that in this case Menski’s testimony as to the validity of the divorce and subsequent remarriage was disregarded by immigration officials. Menski, as an expert on South Asia customs and law, was best equipped to guide the judiciary towards a speedy resolution and justice which would undoubtedly be allowing H’s second wife into the country. However, the case took 5 years, with…