On the voir dire to determine the admissibility of the expert evidence, defence opposed the expert’s evidence on the basis that “her background as a strong advocate for women’s rights made her incapable of providing the kind of objective description of the relevant cultural context that could assist the jury.” The trial judge held that the expert’s prior efforts to educate a wide range of people about the phenomenon of honour killing did not preclude her being found to be an acceptable expert witness.
The trial judge went on to consider the defence’s second argument; that the potential prejudicial effect of Dr. Mojab’s evidence outweighed its probative value. He noted that she did not know any of the parties, would not testify about the facts of the case, would not offer any opinion as to whether the homicides were, in fact, honour killings and would not offer an opinion based on a hypothetical fact situation. Her evidence was being offered only to provide a context within which to assist the jury to decide what inferences to draw as to Sadiqi’s state of mind from the facts available.
The trial judge also considered the fact that defence counsel had acknowledged that evidence of Afghan culture (the cultural background shared by the victims and the accused) and of the cultural perspective was relevant to the defence theory as well and that defence counsel intended to also call an expert to give this type of evidence.
In dismissing this ground of appeal, the Court stated:
We agree with the trial judge’s finding that Dr. Mojab was an appropriate witness. A review of the evidence she actually gave fully supports the trial judge’s ruling. Dr. Mojab made it clear that she had no knowledge of this specific case and that her evidence about cultural phenomena could not be assumed to be applicable to any particular individual within the culture …. The balanced nature of Dr. Mojab’s evidence is perhaps best indicated by the defence decision not to call its expert. Presumably, the defence got the necessary cultural context evidence it needed from Dr. Mojab.
The Court indicated that it was further comforted by the fact that the instructions given to the jury were careful and accurate in their guidance as to the use the jury could make of the expert’s evidence. The Court of Appeal concluded that there was no danger that the jury ceded its fact finding role to the expert.