Bringing medical evidence of torture to international tribunals
can assist the trier of fact to understand or determine an issue in
dispute. Thus, while ordinary witnesses may only testify about
matters which they have observed or experienced, the role of the
medical expert witness is to give an objective, impartial opinion
based upon medical and professional experience and his/her
knowledge of the subject. An expert may draw inferences for
the tribunal in order to enlighten the judges on specific issues of
a technical nature, e.g. torture-specific types of lesions, psychological impact and consequences of torture, etc.
Because the expert opinion can have a significant effect on
the outcome of the trial, international tribunals require that
it is provided by reputable persons who derive their conclusions through scientific methods. The question of whether a
person is an expert is one of law for the determination of the
Trial Chamber.
Five principle admissibility considerations are applied
in varying degree at the international tribunals. First, the tribunals seek to determine whether the witness has sufficient
knowledge and experience to entitle him or her to be considered
as an expert who can assist the court. For the purposes of determining whether a witness meets this requirement, the judge
will examine the witness’ former and present positions and professional experience and publication of scholarly articles.
Second, the tribunals may inquire whether the expert’s
knowledge is sufficiently recognised as credible by others
in the field. The expert statement or report must meet the
minimum standards of reliability, which involves proof or
prima facie reliability. There must be sufficient information as
to the sources used in support of the statements. The sources
must be clearly indicated and accessible in order to allow the
other party or the Trial Chamber to test or challenge the basis
on which the expert witness reached his or her conclusions. In
the absence of clear references or accessible sources, the Trial
Chamber will not treat such a statement or report as an expert
opinion, but as the personal opinion of the witness, and weigh
the evidence accordingly.
Third, the tribunals may determine that the expert’s testimony regards an inference that the judges are capable of
drawing based on their general knowledge and common
sense.
19
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents