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Expert testimony, opinion argument and the rules of evidence

Justice RS French
Federal Court/Law Council Case Management Workshop
14-15 March 2008
Published in [2008] Federal Judicial Scholarship 4

 

Abstract/summary

[From paragraph 1 of article]: 'According to the Gospel of St Matthew, people do not put new wine into old wine skins. Otherwise, the skins burst, the wine spills out and the skins are ruined. Rather, they pour new wine into fresh wine skins, and both are preserved. A question raised in this paper is whether the rules of evidence governing the admissibility of expert evidence are like old wine skins asked to contain new wine. For such testimony extends beyond inferences of fact past or future to argumentative statements of a normative or evaluative character. Moreover, some aspects of such evidence and particularly economic evidence about future outcomes of proposed conduct are either inherently or practically untestable. This paper considers approaches to expert testimony, by reference, inter alia, to other jurisdictions, and how it interacts with the rules governing the reception of opinion evidence. '

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