Neurologist as expert witness.

Prevailing liberal rules of evidence permit qualified medical and scientific experts to offer opinions designed to help courts decide issues to which their expertise relates. The opinions can be based on direct examinations, review of data assembled by others and data or inferences of a type relied on by other experts in the field. Application of these rules is illustrated through analysis of expert testimony in litigation involving a neurologic syndrome allegedly caused by an immunization and in a case involving controversy over the extent and outcome of major brain injury. Concerns about misuse of expert medical and scientific testimony in litigation are addressed. The article closes with a consideration of approaches designed to improve the reliability of expert testimony.     

Clinical practice guidelines as learned treatises: understanding their use as evidence in the courtroom

It is important for forensic experts to understand how clinical practice guidelines may enter the courtroom, what role they may play in a trial, and how they relate to expert testimony. Guidelines enter the record in several different ways and in several types of cases, typically with the assistance of an expert witness. A common vehicle for their introduction is the learned-treatise exception to the hearsay rule. Case law before and after Daubert v. Merrell Dow Pharmaceuticals, Inc. helps to elucidate the scrutiny that courts may direct toward medical texts proffered as evidence. This article discusses the implications of different rules and relevant case law for the forensic psychiatrist. The discussion notes important considerations for the expert witness, such as how guidelines may affect the expert's role, concerns about the reliability and relevance of scientific evidence, and questions about whether guidelines will be used for inculpatory or exculpatory purposes in medical malpractice trials.     

Evidence-based medicine and medicine-based evidence: the expert witness in cases of factitious disorder by proxy

The UK media has recently devoted much attention to the role of expert witnesses in child protection cases. One or two particular pediatricians who have given expert testimony have been the subject of personal vilification and professional investigation. These cases raise questions about the use of medical expert testimony when there is real uncertainty in the scientific community and the emotional stakes are high. Do doctors use scientific evidence to make diagnoses in the same way that the courts use evidence to make judgments? The cases also raise questions about the personal credibility and trustworthiness of experts: should we allow ourselves to be seen as personally powerful witnesses? Are we responsible for how we are seen by the jury? In this article, these questions are addressed, with the conclusion that distress and anxiety about child maltreatment influences all the players in the justice process and may interfere with the process of justice.     

Neurolitigation: a perspective on the elements of expert testimony for extending the Daubert challenge

Scientific expert witness testimony has the potential for affecting most court decisions in civil and criminal proceedings. Since experts were first utilized in English courts beginning in the 14th century, most contemporary courts struggle with seeking a balance between plaintiff and defense counsel allowing each party its day in court while taking into account the work which other courts have done previously in determining the admissibility of expert witness testimony. When these challenges present themselves in the courtroom, often other courts have approached these identical issues, many in proceedings involving the same expert(s). Confronted with these challenges, trial judges want to understand whether a new Daubert hearing must be held, deal with the issue from a clean slate approach or whether they must reinvent the proverbial wheel. Given these dilemmas, this exposition is based within a heuristic approach that will focus on the consideration of comprehensive data inclusion from an evidentiary foundation as it applies to expert witness testimony admissibility in neurolitigation. While the evidential force of FRE 702 specifically applies to admissibility of scientific evidence, it makes sense that along with scientific, objective data, inclusion of non-medical and other data in forming and admitting expert opinions, have mutual bearing upon the validity of opinions arrived at through neuropsychological assessment. It is these multi-data that should be factored into account when applying the Federal Rule of Evidence 702 scientific admissibility standard. Data from other relevant sources is just as vital as data obtained from objective measures, and co-exists with objective data. Without the integration of this information into resulting diagnostic data and opinions, one's methodology is open to scrutiny and can willfully be characterized as engaging in "junk science". Specific, pragmatic issues are discussed in order to avoid the plausible "junk science" question and to ultimately arrive at a factual and evidenced-based admissibility and reliability determination for the courts. Given the current standard, this article proposes an inclusionary method in neurolitigation as it would necessarily apply to Federal Rule of Evidence 702 which would extend to the integration of data outside medical and scientific information bases to establish accurate opinions for the trier of fact. In so doing, neuropsychological test data, non-medical data and expert testimony would be strengthened through inter-data consistency.     

The effect of expert witness testimony and complainant cognitive statements on mock jurors’ perceptions of rape trial testimony

This study explores the influence on juror decision-making of expert witness and rape complainant testimony that explains a complainant's counter-intuitive behaviour. A total of 280 participants read a vignette of a date rape scenario containing one of four combinations of conditions: expert witness testimony present or not present and complainant's explanatory statement present or not present. No significant effects were found between conditions for defendant guilt likelihood and complainant credibility or blameworthiness, but the participants judged the defendant as more blameworthy when both the complainant's explanatory statement and the expert witness testimony were present. The participants’ qualitative responses about their reasoning suggest that they were more likely to use evidence-based reasoning in their judgements when expert witness testimony and cognitive statements were present. This emphasises the importance of police and prosecutors finding ways to mitigate the potentially detrimental effects of rape myths when gathering evidence and constructing a case.     

Taking the stand: Issues and strategies in forensic neuropsychology

Neuropsychologists are participating in the legal process with increasing frequency. Simultaneously, attorneys are becoming more sophisticated about the limitations of the field, leaving the expert neuropsychologist vulnerable to increasingly rigorous cross-examination. Five substantive areas in which common assumptions are vulnerable to the weight of scientific evidence are reviewed in an effort to enhance the preparedness and credibility of the neuropsychological expert witness. These include: (1) the lack of uniformity in neuropsychological assessment; (2) research on training, experience, and judgment accuracy; (3) the modest capacity to predict everyday and work functioning from neuropsychological test results; (4) evidence indicating an inability to detect malingering; and (5) the problems clinicians have with complex data integration. When appropriate, suggestions for corrective strategies in forensic evaluations and expert testimony are provided.     

The psychiatrist as expert witness

This article discusses the two different types of legal situations involving participation by psychiatrists--clinical testimony and forensic expert testimony--and presents guidelines and ethical considerations for the psychiatrist participating in the criminal justice system.     

Psychology brings justice: the science of forensic psychology

In this paper the focus is on one aspect of forensic psychology: the development of psychological instruments, a social psychological model and assessment procedures for evaluating the credibility of witnesses and police detainees during interviewing. Clinically grounded case work and research has impacted on police interviewing and practice, the admissibility of expert psychological testimony and the outcome of cases of miscarriage of justice. After describing the research that laid the foundations for advancement of scientific knowledge in this area, a brief review is presented of 22 high-profile murder cases where convictions based on confession evidence have been quashed on appeal between 1989 and 2001, often primarily on the basis of psychological evidence. The review of the cases demonstrates that psychological research and expert testimony in cases of disputed confessions have had a profound influence on the practice and ruling of the Court of Appeal for England and Wales and the British House of Lords. The cases presented in this paper show that it is wrong to assume that only persons with learning disability or those who are mentally ill make unreliable or false confessions. Personality factors, such as suggestibility, compliance, high trait anxiety and antisocial personality traits, are often important in rendering a confession unreliable. Future research needs to focus more on the role of personality factors in rendering the evidence of witnesses and suspects potentially unreliable.     

The expert witness in forensic psychiatry.

Forensic psychiatry operates at the interface of the Justice and Health systems and has been defined as: "That branch of psychiatry which requires special knowledge and training in the law as it relates to the mental state of the offender, or alleged offender" [1]. As a consequence of working in this area, psychiatrists are often called into court to give evidence as "expert witnesses". This article examines some of the professional and legal issues involved in providing expert testimony. Secondly, it aims to outline some practical guidelines for giving evidence in the court-room. The predominant focus is on criminal, rather than civil, proceedings in which the forensic psychiatrist gives expert testimony; however much of the information is also relevant to other psychiatrists and psychologists undertaking this role in the legal arena.     

A practical approach to sexual abuse allegations: Netherlands Expert Committee for Equivocal Sexual Abuse Allegations

Equivocal sexual abuse allegations are those in which the details of the alleged offence(s) are uncertain. The circumstances are ambiguous, there is limited evidence, and it is unclear how police investigations should proceed. This article discusses the challenges such allegations pose for police, prosecution, judges and mental health experts, and advocates for the use of multidisciplinary expert opinion during the investigation. The practical application of this approach by the Netherlands Expert Committee for Equivocal Sexual Abuse Allegations (LEBZ) is described, which has assessed over 900 cases since its inception in 1999. The LEBZ approach represents a significant innovation in police and criminal justice responses to equivocal allegations of sexual assault, which warrants consideration in other jurisdictions.Key words: expert testimony, investigative psychology, multidisciplinary approach, sexual abuse allegations     

Expert Evidence and Jurors’ Views on Expert Witnesses

Jurors who had served on criminal trials associated with charges of sexual offences against children were asked about their views of expert evidence and in particular about the characteristics and behaviour of expert witnesses. Responses indicated that jurors welcomed and valued expert testimony, perceiving it as an opportunity to hear from someone neutral in the context of the adversarial process. Jurors were asked to describe the qualities of expert witnesses that gave credibility to their evidence. Relevant professional experience, lack of bias, and clarity of evidence were ranked in that order. Also relevant were the confidence and eye contact of the expert witness with the jury, followed by the academic qualifications of the expert. These results have implications for the selection and training of expert witnesses and the admissibility of their proposed evidence.     

The treating physician as expert witness: ethical and pragmatic considerations

OBJECTIVE: The objective of this analysis is to apprise pain physicians of the ethical concerns and practical considerations that arise when a treating physician is called upon to testify as an expert witness in a legal proceeding involving his or her own patient. The provision of expert testimony in medico-legal proceedings has come under heightened scrutiny in recent years. When a physician testifies as an expert witness, such testimony is considered to be the practice of medicine, and hence subject to the same ethical and professional obligations as patient care. Increasingly, medical professional organizations have promulgated guidelines for such activities, and even implemented oversight mechanisms to review complaints concerning expert testimony by their members. Additional issues are raised when the expert witness is also the treating physician for the patient who is a party to the legal proceeding in which the expert testimony is offered. CONCLUSIONS: While it is not categorically unethical or inadvisable for a physician to testify as an expert witness in a medico-legal proceeding involving his or her own patient, such activity raises special issues and concerns. Prospective expert witnesses in such situations should be cognizant of these issues and insure that they have been adequately addressed before and during the testimony.     

What Evidence Matters to Jurors? The Prevalence and Importance of Different Homicide Trial Evidence to Mock Jurors

The present research explores how important different trial evidence is to mock jurors’ decisions. Study 1 surveys legal professionals to determine what evidence is common at homicide trials. Study 2 utilizes the list of evidence generated in Study 1 to ask mock jurors to report how important each piece of evidence would be in deciding their verdicts. The results indicate that DNA is most important to mock jurors, followed by fingerprints, the weapon, video records, crime-scene photos, gunshot residue, bodily secretions, video confession, testimony from a forensic expert, and eyewitness testimony. Study 3 utilizes a different methodology wherein mock jurors were presented with folders labeled with different evidence and asked to choose the piece of evidence they wanted to learn more about first, second, and so on. The results from Study 3 indicate again that DNA evidence is most important to mock jurors, followed by video confession evidence, eyewitness testimony, and fingerprint evidence. Implications are discussed.     

À propos des limites de l'expertise psychiatrique pénale des victimes

In legal proceedings the expert witness testimony may be considered a medical act only if the expert conducts his clinical observations within the limits established by the medical code of ethics. This will then allow the psychiatrist to help the judge reach a more informed legal decision. The difficulty inherent in this process is for the expert to give an exact answer (“yes” or “no”) to the questions formulated in order for the judge to arrive at an accurate decision. To better understand the evidence presented, the judge may ask empirical questions that require the expert witness to give testimony going beyond the information directly gathered through clinical observations. It is the expert witness' responsibility to determine what amount of interpretation of material drawn from a clinical observation is appropriate to help the judge make a legal decision. This requires defining legal standards such as credibility, truth, and suggestibility. One must also recognize that the clinical observation of a victim is often the person's first contact with a psychiatrist.     

Children,Sexual Abuse and Suggestibility: What Laypeople Think They Know and What the Literature Tells Us

This article summarizes the extensive research literature on laypeople's and jurors' beliefs about children's memory, suggestibility and responses to child sexual abuse. In particular, it discusses the extent and types of misconceptions held by laypeople/jurors, as well as the effects of age, education and gender on those misconceptions. The results from an analysis of mock jury studies where different types of expert testimony were presented are then considered in order to understand the types of expert testimony that would be admissible in courts in Australia, with a particular focus on the Uniform Evidence Act. As a result of this analysis, particular reform options are discussed and recommended in order to counter juror misconceptions in child sexual abuse trials.     

The role of imaging in United States courtrooms

The rapid evolution of brain imaging techniques has increasingly offered more detailed diagnostic and prognostic information about neurologic and psychiatric disorders and the structural and functional brain changes that may influence behavior. Coupled with these developments is the increasing use of neuroimages in courtrooms, where they are used as evidence in criminal cases to challenge a defendant's competency or culpability and in civil cases to establish physical injury or toxic exposure. Several controversies exist, including the admissibility of neuroimages in legal proceedings, the reliability of expert testimony, and the appropriateness of drawing conclusions in individual cases based on the findings of research uses of imaging technology. This article reviews and discusses the current state of these issues.     

The insanity defense: the case for abolition

The author discusses psychiatrists' objections to the insanity defense, including the negative publicity generated by murder trials in which psychiatrists provide expert testimony. He also examines the legal profession's attitudes toward the defense and the pressure applied to expert witnesses through our adversarial system of justice. The abolition of the insanity defense might expedite the legal process, the author concludes, but it would not greatly affect the courtroom role of psychiatrists. Psychiatric evaluation would still be required in certain cases, such as those involving diminished responsibility and competency to stand trial.     

The New Zealand approach to expert evidence on the common characteristics of sexually abused children

The law of evidence in New Zealand has recently been amended by statute to permit appropriately qualified experts to give a wider range of testimony concerning the behaviour of child complainants of sexual abuse. The author discusses the evidence that may now be presented; considers the forensic context within which this testimony is admitted; and describes the common law background against which these developments have occurred.