Psychologists as Expert Witnesses in Australian Courtrooms

Mental health professionals assist Australian courts and tribunals with explanations about human behaviour and mental processes related to offending behaviour. Contrary to other witnesses who are only allowed to give evidence in relation to what they directly heard or saw, mental health professionals are allowed to express opinions because they are recognised as expert witnesses with specialised knowledge. However, in Australia at least, little is known about how these expert witnesses are chosen and how they meet the requirements of possessing “specialised knowledge”. In this article, we provide a brief history of expert witnesses in the courtroom, including the use of psychologists as expert witnesses. We then highlight some of the concerns that legal professionals have raised about psychologists as expert witnesses in the limited number of studies that have been conducted in Australia, the United States, and the United Kingdom. Finally, we raise questions about how psychologists are chosen to be expert witnesses in Australia and introduce directions for future research.     

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.     

Expert witness testimony: A trial judge's perspective

This article discusses the use of expert, scientific testimony in Judge Weinstein's courtroom cases that involved Agent Orange, silicone breast implants, repetitive stress injuries, diethylstilbestrol (DES), and asbestos. The author summarizes the evidentiary standards for admitting expert, scientific testimony, and discusses some of the unique ethical and logistical issues presented by such evidence. Advice is offered for prospective expert witnesses. Possible solutions to the problems the legal and scientific communities face in balancing society's need for expert evidence and its limitations are addressed.     

Complainants with learning disabilities in sexual abuse cases: a 10‐year review of a psycho‐legal project in Cape Town,South Africa

We describe a project established in 1990 to assist complainants with learning disabilities in sexual assault cases in Cape Town, South Africa. Complainants are prepared for court and psychologists advise investigating officers and prosecutors, and provide expert testimony. There has been an enormous increase in the utilization of the project by justice personnel. This paper examines 100 cases seen over a 10‐year period. We describe the demographics and sexual abuse history of the cohort as well as documenting speed of investigation and outcome of the trials. Almost all charges were of rape and most complainants had learning disabilities in the mild or moderate categories. No men with learning disabilities were among the accused. We raise questions about which cases are perceived as evidentially strong. The conviction rate of 28% was almost identical to the best conviction rate in such cases in the general population in South Africa. In contrast to recent research into conviction rates in South Africa, these cases appear to have been vigorously pursued.     

Psychiatric evidence on the ultimate issue

Federal Rule of Evidence 704(b) prevents psychiatrists and other expert witnesses in federal criminal trials from testifying as to whether a defendant did or did not have a mental state or condition comprising either an element of the crime or an element of the defense. This paper describes the origins of the Rule and its judicial development. The Rule is an exception to a 20th century trend that has seen witnesses increasingly permitted to address the ultimate issue. It has been applied inconsistently, has been criticized in appellate decisions, and has spawned an idiosyncratic legal definition of "helpful." Attempts to circumvent it have included inviting jurors to make inferences, inventing hypothetical cases that mimic the one before the court, and eliciting expert testimony on what is "possible" or "probable." Courts have held that rendering transparent the reasons behind an expert's conclusions can minimize the damage done by ultimate issue testimony.     

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 presentation of forensic psychiatric evidence in court

After defining the role of expert witness, the article reviews the basics of courtroom testimony under the rubrics of (a) truth (presenting under oath only that testimony that one can "swear to," to a reasonable degree of medical certainty); (b) testing (including both psychological testing and tests to assess admissibility standards); and (c) theater (including elements of drama, solemnity, and ritual as well as persuasiveness to the "audience"). Pathways to effectiveness are discussed, including use of visual materials, adjustment of language level for the jury's comprehension and attention to the narrative dimension of the case. Areas of excluded testimony are identified, such as the "ultimate issue" in the case, comments on credibility of other witnesses and comments on the legal process itself. Pitfalls that lie on the path to effectiveness are described, including narcissistic arrogance, anger, and using testimony in a personal crusade; means of avoiding these pitfalls are noted. The author concludes that effective courtroom testimony fulfills expert witness functions necessary to the legal system.     

It's Not What She Says,It's How She Says It: The Influence of Language Complexity and Cognitive Load on the Persuasiveness of Expert Testimony

Mock jurors rely on a variety of heuristics and stereotypes about expert witnesses when evaluating their testimony. Research indicates that these extra-legal cues have their greatest impact when expert testimony is complex and so processed in a less effortful manner. Previous work suggests that language complexity may also be related to stereotypes about expert gender. This research tested the hypothesis that complex language is seen as stereotypically associated with male experts, whereas simple language is associated with female experts, and that such expectations about the gender orientation of the expert's language influence mock jurors' judgments such that they would be more persuaded when an expert used language that matched his/her gender. Results provided some support for predictions, primarily when the expert was female.     

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.     

From mental health professional to expert witness: testifying in court

Our democratic principles rest on the belief that truth is discovered through the fair and open combat of ideas in a court of law. When mental health professionals participate in this adversary process as expert witnesses, it is essential for them to understand that attorneys will attempt to impeach their credibility. Mental health professionals who appreciate the spirit and mechanics of courtroom communication will be best prepared to protect the integrity of their testimony. The courtroom communications model provides experts with a conceptual framework utilizing three components: the speaker is the expert, the message is testimony, and the audience is the judge or jury. Within the structure of this model, communication principles from social psychology can be used to enhance the clarity of testimony and to prevent attorneys from distorting the expert's opinions. First and foremost, expert witness testimony must be formulated on accepted scholarly and ethical standards. To establish credibility, experts must appear knowledgeable and trustworthy to the judge and jury. The expert must come to court prepared for both direct examination and cross-examination, know when to emphasize logic or emotion, tailor speech in order to reach the maximum number of jurors, and remain nondefensive by projecting the same demeanor regardless of which side is conducting the examination. The role of the expert witness is forever changing because the judicial system--like the mental health field--continues to evolve. Although the adversary process has undergone dramatic changes over the past eight hundred years, historical vestiges continue to echo throughout our courtrooms. Today expert witnesses are the champions of both victims and the accused. Legal disputes are increasingly being decided by the battle of the experts, who must undergo the ordeal of cross-examination. When you consider the brutality of ancient ordeals, responding to attorneys armed with questions may not seem so daunting.     

The child as a witness

The increasing participation of children in judicial proceedings raises two central issues: the competency of the child as a witness and the effects on the child of testifying about a traumatic experience. After discussing these issues, the authors present the recommendations of forensic child psychiatrists on how to improve the judicial process to elicit more accurate testimony from child witnesses--for example, by videotaping a child's testimony to avoid repeated interrogations, using anatomically correct dolls and pictures to allow the child to recount events through displacement, and using one skilled interviewer throughout the proceeding to allow rapport to develop between interviewer and child. They then discuss the role of the child psychiatrist in court proceedings involving child witnesses.     

The Effects of Evidence,Coherence and Credentials on Jury Decision-Making in Child Sexual Abuse Trials

Expert testimony is being used increasingly in child sexual assault cases. This study extended a prior study that examined factors related to expert testimony (evidence strength, coherence and credentials of the expert) on ratings of guilt and overall verdict. Specifically, we replicated our prior study but with two modifications: we used community samples as opposed to university students, and participants made their decisions in groups of 12 (as in the case of juries where one decision represents the overall group) rather than having participants decide and submit their verdicts and guilt ratings individually. Consistent with the prior (less ecologically valid) study, credentials of the expert had negligible impact. Evidence that was high in strength elicited a relatively high guilt rating even when the testimony was low in coherence. Further, it appears that when participants deliberate in a group (as in the case of juries) they are more conservative in their judgements (i.e., they are less likely to give a guilty verdict) compared to individual jurors who make their decisions alone. These findings suggest that caution must be exercised when drawing conclusions about the generalisability of prior research findings where participants did not engage in group deliberation.     

Estimating present and future damages following child maltreatment

The child psychiatric forensic evaluation of children and adolescents who are plaintiffs in civil lawsuits regarding their present and future damages from child maltreatment requires knowledge of current research findings on the short-term and long-term consequences of child maltreatment, evidence-based treatments for psychological trauma, and relevant professional guidelines, along with knowledge of the ethics and laws governing mental health expert practice and testimony in personal injury litigation. This article reviews current research and recommends an approach to these evaluations and expert testimony that is informed by current research findings, recently developed professional guidelines, and many years of professional experience.     

Points of Law

What is the extent of personal legal liability of professionals carrying out investigation and assessment in cases involving child protection? In cases where their advice has been incorrect, or where the Court decision does not support their conclusions, can they be held liable by the child or parents involved? These questions were considered recently by the House of Lords, whose judgement will have important implications for professionals who work with children and families. Their Lordships decided that psychiatrists and other professionals involved in child protection cases are not personally liable. The principle of witness immunity was extended to cover any professional who gives advice either in the context of or in contemplation of court proceedings. In the child protection area, local authorities will not be liable either directly or as the employers of professionals. Peggy Ray , a solicitor specialising in children's cases and member of the Children's Panel of the Law Society, spells out the legal implications of the judgement. Judith Trowell , a consultant child and adolescent psychiatrist and experienced expert witness, discusses the implications for clinicians undertaking expert witness work.     

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.     

A Case Concerning Children's False Memories of Abuse: Recommendations Regarding Expert Witness Work

Expert witnesses can play a major role in legal cases concerning the reliability of statements. Abuse cases frequently contain only the memories of eyewitnesses/victims without the presence of physical evidence. Here, it is of the utmost importance that expert witnesses use scientific evidence for their expert opinion. In this case report, a case is described in which 20 children reported being sexually abused by the same teachers at their elementary school. The investigative steps that were taken by the police and school authorities are reviewed, including how they probably affected memory. In order to provide a sound expert opinion regarding the reliability of these statements, three recommendations are proposed. To reduce the effect of confirmation bias and increase objectivity, it is argued that expert witnesses’ reports should contain alternative scenarios, be checked by another expert, and focus on the origin and context of the first statement.     

Legal Representatives’ Opinions regarding Psychologists Engaging in Expert Witness Services in Australian Courts and Tribunals

Legal representatives engage psychologists to provide expert witness opinions about a number of factors, including the psychological factors that may have contributed to the perpetrator's behaviour and the likelihood of reoffending. Although this evidence can affect the outcome of proceedings, little is known about how the experts who provide it are chosen or about the quality of their services. This paper explored legal representatives’ reasons for engaging psychologists as expert witnesses, how they choose these experts, and their opinions about the expertise provided. Questions were also asked about the features of good and poor written and oral expert testimony. The results show that the majority of legal representatives engage psychologists who are usually chosen through referrals from colleagues and others. The legal representatives in the present sample had little awareness about the different backgrounds of experts (e.g. clinical vs forensic psychology). These results have implications for psychologists who provide expert evidence and the legal representatives who engage them.     

Mode of Children's Testimony and the Effect of Assumptions about Credibility

Due to changes in legislation, children's testimony in many jurisdictions can be presented differently to the way in which most adults’ testimony is presented. The present research was conducted to investigate whether the various ways in which children's testimony is given affects how child victims in cases of child sexual assault are perceived in terms of reliability and how their testimony is evaluated. We examined the effect of giving testimony in court via closed-circuit TV (CCTV), via a pre-recorded testimony, and a combination of the two. The results indicate that the timing of the recording of the testimony, and the presence of the child in court, did affect the use of stereotypes in ratings of the case. Stereotypes about children's memories had an effect when an early recording of the child's testimony was lacking and when the child did not appear in court. Furthermore, the effect of these stereotypes was mediated by perceptions of the honesty and accuracy of the child in the case. This indicates that jurors do appear to use assumptions about children's memories and authenticity when making decisions in these kinds of cases.