Forensic psychiatry in France: the Outreau case and false allegations of child sexual abuse

During the Outreau case in France, 13 individuals were falsely accused of child sexual abuse and incarcerated. The author of this article testified as a psychiatric expert when the convictions were appealed. He explains how purposeful false statements by adults, inept expert witnesses, and the judicial assumption that children do not lie converged to create a tragic legal outcome. This article explains how psychiatric experts should conduct evaluations in cases of alleged child sexual abuse.     

Psychology from the Bench1

In this article, the authors review the implications of the recent Northern Territory case of NJB v The Queen, and argue that it reveals the true depth of a paradox that has opened up with regard to the guidance afforded to a criminal trial jury. It is argued that there is an incongruity between the reluctance to adduce expert opinion evidence on the credibility of child witnesses and having judges inaccurately comment on the subject. This problem extends to judicial directions routinely employed in other areas of the criminal law where witnesses’ credibility is at issue. It is independent of whether or not these directions are framed as obligatory directions or as opinions that the jury is free to accept or reject. It requires a suspension of disbelief to accept long cherished legal maxims as to the efficacy of judicial directions in such circumstances.     

About the necessity of neuropsychological assessment in the civil law

Giving expert opinions within legal psychiatry in civil cases requires more and more strict co-operation of expert psychiatrists with psychologists. Assessment of the cognitive functions with the help of neuropsychological methods is an important diagnostic element that leads to giving the right opinion. The most frequent reasons for appointing experts in psychiatry and psychology are disorders of cognitive functions as a result of various brain injuries. Dementia syndromes are particularly often subjects of doubts in preparing expert opinions as they must be distinguished from other organic dysfunctions and from the age--associated memory impairment. Considering the evidence value the most important thing is to assess all the objective data included in the medical records and subsequently to assess the testimony of the witnesses Usually people from legal circles and families of the people who make declarations of will overvalue the importance of additional examinations. Those examinations are important but they do not settle the patient's psychic state because the decisive factor is not the kind of somatic disease but the influence of that disease on the psychic state. The neuropsychologist's role in giving medical statements is going to increase together with the tendency to objectivization and qualitative assessment of intensification of respective disorders of cognitive functions when examining patients in order to give expert opinions.     

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.     

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.     

Choosing and Instructing the Mental Health Expert Witness: A Lesser Known Aspect of Trevorrow

Apart from its significance as the first case to recognise that a member of the “stolen generation” had a cause of action against the government, Trevorrow v State of South Australia (No 5) [2007] SASC 285 is also a pertinent reminder of the extent to which a court will be assisted by an expert, especially when the expert is providing evidence that, whilst within their general training in psychiatry or psychology, is nonetheless outside the expert's clinical or academic experience. The situation becomes worse when experts are inadequately instructed. This article will consider the responsibilities of lawyers when choosing and instructing mental health experts. It will be argued that if the civil jurisdiction rules of court in relation to expert witnesses are followed, then there should be no real need on most occasions to call mental health experts to give oral testimony, except where a pre-trial conference does not lead to the resolution of differences of opinion between the experts.     

The admissibility of expert evidence of mental disorder in criminal law and the application of the evidence act 1995 (NSW)

The Evidence Act 1995 (NSW) (hereafter EA) commenced on 1 September 1995. The Act sought to clarify and reform complex rules of evidence including the rules relating to the admissibility of expert evidence in criminal trials. In doing so however the legislation has raised its own complexities. The result is that the extent to which expert evidence may be admissible in the criminal trial requires a close analysis not only of the application of the opinion rule, but also other sections of the Act which impact upon it The application of expert evidence is particularly significant in the area of mental disorder in the criminal law, as demonstrated by reform of the law of diminished responsibility in New South Wales which (inter alia) emphasises a central role for the jury as the ultimate decision‐maker in the application of the defence. These developments in the law suggest a need for examination of the admissibility of expert evidence in trials where mental disorder of the accused, or sometimes the complainant or other witnesses, is raised. This article seeks to review the law of opinion evidence at common law and under the EA with a view to assessing the application of expert evidence in the field of mental disorder in the criminal law under the regime of the new legislation. The outcome reveals that each of the disciplines involved in this field need to come to grips with the application of the EA and the manner in which it shapes the relationship between evidence of mental disorder and the criminal law.     

Counterintuitive Expert Psychological Evidence in Child Sexual Abuse Trials in New Zealand

The Evidence Act 2006 came into law in New Zealand in 2007. Among the many reforms was an amendment to the law pertaining to expert opinion evidence. In keeping with other jurisdictions, New Zealand adopted the “substantial helpfulness” test in relation to the admissibility of expert evidence. Since 2008, the courts have regularly admitted what has been termed “counterintuitive” expert psychological evidence in child sexual abuse trials, and appellate courts have upheld the use of this evidence. Such evidence has the purpose of educating juries, with particular reference to commonly held misconceptions about child sexual abuse. We discuss what is meant by the term counterintuitive evidence, why such evidence has been deemed helpful and the types of counterintuitive evidence currently given by psychologist expert witnesses in the New Zealand courts.     

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.     

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.     

Uncertainty and Misconceptions About Child Sexual Abuse: Implications for the Criminal Justice System

Recent amendments to the uniform evidence legislation in Australia mean that it will be possible for prosecutors to call expert opinion evidence to bolster the credibility of child complainants in child sexual assault (CSA) trials. Yet little is known about the extent of the common beliefs and misconceptions in the Australian population about child sexual abuse and the degree of discord between their beliefs and what the research literature shows. A survey investigated the knowledge and misconceptions of 659 laypeople about children's memory, reliability, suggestibility and children's responses to sexual abuse, and explored demographic differences in child sexual abuse misconceptions in an Australian jury-eligible sample. Reported here are the first published results on the perceptions and beliefs of Australian citizens regarding factors that influence the outcomes in CSA cases. An important contribution was significant findings of extensive uncertainty regarding these topics. Results showed that gender, age and educational attainment were associated with the endorsement of misconceptions about CSA cases. Topics that expert evidence can address to remedy these knowledge deficits were identified.     

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.     

Judging experts: Australian magistrates’ evaluations of expert opinion quality

Expert opinions admitted by courts are not always valid and reliable. However, we know little about how indicators of opinion quality affect the persuasiveness of an expert. In this study 25 Australian magistrates and 22 jury-eligible lay people rated the persuasiveness (via credibility, value and weight) of either a high- or a low-quality expert opinion. Opinion quality was determined using attributes specified in the Expert Persuasion Expectancy (ExPEx) framework: Field, Specialty, Ability and Trustworthiness. Both magistrates and jurors were significantly more persuaded by the high- than the low-quality expert opinion. Magistrates were also significantly more sceptical of the expert opinion than lay people, and when given the opportunity sought information that was logically relevant to their decision. These results suggest that magistrates can differentiate between high- and low-quality expert opinions, but it is unclear whether the information they need for the task is actually available for use during trials.Key words: expert evidence, expert testimony, forensic science, judges, jury decision-making, persuasion

Expert evidence is regularly used to assist courts with decision-making (Gross, 1991; Jurs, 2015). However, the quality of expert opinions has been, and continues to be, of significant concern (Edmond & San Roque, 2012; Findley, 2008; Martire & Edmond, 2016; National Research Council, 2009; President’s Council of Advisors on Science and Technology, PCAST, 2016; Risinger, Denbeaux, & Saks, 1989). The quality of expert opinions in a range of disciplines has been questioned, including the forensic sciences, mental health diagnoses, medical causation, gender discrimination and eyewitness reliability among others (e.g. Bernstein, 1990; Cole, 2003; Cunliffe & Edmond, 2013; Deitch, 2009; Edens et al., 2012; Imwinkelried, 2009; Martire & Kemp, 2011; Monahan, Walker, & Mitchell, 2008; Taupin, 2004). Even so, the opinions of experts from these and other areas remain persuasive to factfinders.Courts worldwide have been influenced by the mistaken and inaccurate opinions of expert witnesses. False and flawed expert testimony has contributed to approximately 60% of known wrongful convictions identified by the United States Innocence Project (Garrett, 2017; Garrett & Neufeld, 2009), one third (31%) of 71 Australian exonerations (Dioso-Villa, 2015) and one quarter (24%) of exonerations in the United States National Registry of Exonerations (Gross & Shaffer, 2012). Indeed, discredited and unvalidated forms of expert evidence continue to be admitted and relied on by courts despite authoritative criticism (National Research Council, 2009; PCAST, 2016; Skene, 2018). This leaves factfinders with the challenging task of differentiating between witnesses who are genuine experts and those who are not.In Australia, expert evidence is most likely to be evaluated by judicial officers rather than lay juries. Of 592,455 finalised defendants in 2017–2018, 92% (or 545,251) appeared in the Magistrates’ Courts (Australian Bureau of Statistics, ABS, 2019). Magistrates’ Courts are summary courts, meaning that magistrates rather than juries determine the verdict. They also generally consider matters of a less serious nature than the Higher Courts. However, this does not remove the need for expert witnesses. In 2017–2018, Australian Magistrates’ Courts resolved 40,576 theft offences, 56,638 illicit drug offences and 71,405 regulatory driving offences (Australian Bureau of Statistics, 2019). These matters often require the testimony of, for example, fingerprint analysts, forensic chemists, pharmacologists or toxicologists to assist to establish the fact of an offence, or the identity of the perpetrator. Thus it is likely that magistrates regularly hear expert testimony. This makes it important for us to understand how magistrates evaluate expert opinion evidence and whether it can be improved.To date, research examining how judges and magistrates evaluate expert opinion quality suggests that their performance is likely to be imperfect. While there is some evidence that judges evaluating scientific opinions have a good understanding of some key indicators of scientific reliability (i.e. peer review and general acceptance; Gatowski et al., 2001), as well as some types of evidence (i.e. mitochondrial DNA; Hans, 2007), weaknesses have also been found. Judges frequently make logical errors (i.e. the prosecutors’ fallacy; De Keijser & Elffers, 2012), mistakenly believe that scientific knowledge can and should be categorical or certain (Faigman, 2006), misunderstand falsifiability and error rate (Gatowski et al., 2001) and are unable to differentiate valid and invalid research (Kovera & McAuliff, 2000). These failures are likely to impair the assessment of expert quality. However, there are other relevant considerations to be taken into account.At least eight attributes have been identified as logically relevant to determining the quality of an expert opinion (Martire, Edmond & Navarro, 2020; Walton, 1997). These are: Foundation, Field, Specialty, Ability, Opinion, Support, Consistency and Trustworthiness. The indicators of scientific validity and reliability described above relate to Foundation and Ability attributes. Specifically, Foundation covers field, discipline and technique validity and reliability (e.g. error rate, falsifiability, study design, etc.), while Ability relates to the personal proficiency or competence of the witness. Field and Specialty (respectively) relate to the general and specific training, study and experience of the witness relevant to their opinion. Opinion is about the content, conservatism and comprehensibility of the opinion expressed. Support includes the evidentiary basis for, and logic of, the opinion. Consistency concerns whether other experts agree with the opinion. And Trustworthiness incorporates the bias, honesty and conscientiousness of the witness. These attributes have been formalised in the Expert Persuasion Expectancy (ExPEx) framework (Martire et al. 2020) as follows:

1. Foundation – Does training, study or experience in the field F support assertions like A?
2. Field – Does witness W have training, study or experience in the field F?
3. Specialty – Does W have training, study or experience specific to assertions like A?
4. Ability – Does W provide assertions like A accurately and reliably?
5. Opinion – Does W convey A clearly, and with necessary qualifications?
6. Support – Does W rely on evidence in making A?
7. Consistency – Is A consistent with what other experts assert?
8. Trustworthiness – Is W personally reliable as a source?

At present, we have only limited information about the extent to which magistrates and judges attend to and value these logically relevant attributes when assessing the quality of an expert opinion. Champagne, Shuman, and Whitaker (1990) surveyed 10 United States judges who noted a diverse array of attributes relevant to expert quality. These included: credentials (Field or Specialty), bias (Trustworthiness), methodology (Foundation or Support), communication skills (Opinion) and experience (Field or Specialty). Indeed, only one reported attribute clearly fell outside the ExPEx framework – witness demeanour. However, it is not clear whether the attributes that judges believe to be relevant to quality actually influence their evaluation of an expert opinion.More recently, Tadei, Finnila, Reite, Antfolk, and Santtila (2016) surveyed 87 judges in Finland to explore how they determined the quality of an expert opinion. Judges rated the importance of seven listed indicators of reliability: falsifiability (Foundation), error rate (Foundation or Ability), peer-reviewed research (Field or Specialty), scientific acceptance (Foundation), practical acceptance (Consistency), work experience (Field or Specialty) and research activity (Field or Specialty). They were also asked to read five vignettes and note any questions they would ask to evaluate the reliability of the expert opinion in the scenario.The judges’ ratings showed that work experience was seen as the most important of the listed attributes for determining an experts’ reliability. This was followed by error rate, practical acceptance, scientific acceptance, peer-reviewed research, falsifiability and research activity. While 54% of judges also posed questions about error rate in the case scenarios, most of them did not ask about the other listed indicators. Instead, they wanted to know more about the opinion (83%), its basis (77%), and the supporting research (56%). These questions relate to the Opinion, Support and Foundation attributes in ExPEx, respectively.Overall then, we have some preliminary evidence about how judges believe they assess the quality of an expert opinion (Champagne et al., 1990). We also know a little about the information they might seek to complete their assessments (Tadei et al., 2016), and that much of this information is logically relevant to determining the quality of an expert opinion. However, we do not know whether this logically relevant information actually affects the decision-making of judges when it is available.In this article we examine whether the decision-making of magistrates is affected by attributes logically relevant to the quality of the expert opinion. Specifically, we examine whether magistrates consider strong expert opinions more persuasive than weak ones when quality is manipulated via ExPEx attributes. We also compare the performance of magistrates to that of lay people for reference. We predict that magistrates and lay people will be significantly more persuaded by high- rather than low-quality expert opinion evidence when operationalised in terms of ExPEx attributes.In addition, following from Tadei et al. (2016), we examine whether magistrates seek information that is logically relevant to their assessment of expert opinion quality. If magistrates request information that is within the ExPEx framework, rather than outside of it, this suggests that magistrates know which attributes of an expert opinion should be taken into account. It would also indicate that the ExPEx framework usefully represents the informational needs of judges.     

Ridiculous statements by mental health experts

When mental health experts express their opinions in testimony, reports, and articles in professional literature, it is expected that their statements will accurately reflect the current state of knowledge. Experts may disagree about the data that they collected. In some cases, however, disagreement occurs because an expert has employed a methodology that is far outside usual procedures or simply disregarded objective facts. When that occurs, the expert's opinions may be considered ridiculous. The author presents examples of ridiculous statements by mental health experts and provides suggestions for how a forensic practitioner might address ridiculous statements by mental health experts.     

The attitude of courts in England to compensation for post-traumatic epilepsy.

The attitudes of courts in England to the assessment of damages for post-traumatic epilepsy have dramatically changed over the last 20-30 years. In assessing damages for post-traumatic epilepsy the courts are faced with a number of considerations: epilepsy can appear several years after the injury; epilepsy is not a homogeneous condition; the eventual prognosis is unknown; the epilepsy may not have been directly due to the trauma; and epilepsy affects life expectancy and employment. Damages were originally fixed at the point of compensation, and these rather crude calculations led to both over- and under-compensation. This situation was improved in 1985, when courts were permitted to award damages on the assumption that epilepsy would not occur or worsen, and further damages should these assumptions prove to be incorrect. The courts in England still depend, however, upon the evidence of expert witnesses chosen by the plaintiff and defendant. A tension thus exists between the duty of expert witnesses to the court and the understandable inclination of expert witnesses to support the party that has instructed them. The Woolf report has led to changes in the responsibilities of expert witnesses, and will hopefully remedy many of the inconsistencies and inequities that occur.     

Lies,damned lies,and medical experts: the abrogation of responsibility by specialty organizations and a call for action

The festering problem of medical expert witnesses proffering false testimony in court remains. A review of the many proposed reforms to resolve this chronic and outrageous practice has indicated little progress despite a resolution by the American Medical Association enunciating that medical expert witness testimony is effectively the practice of medicine. A questionnaire was sent to 36 specialty organizations to determine whether they had established guidelines, position statements, policies, or bylaws that govern the disciplinary management of their members who testify falsely. Responses were obtained from all 36 specialty organizations and showed that over 80% had no definitive disciplinary policies to deal with this egregious practice. This finding is all the more surprising given repeated judicial and other exhortations to professional organizations to "police themselves." To address the abrogation of responsibility by specialty organizations, new stringent disciplinary steps are proposed to exorcise the despicable practice of false expert witness testimony from the practice of medicine.     

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.     

Somatic diseases in child survivors of the Holocaust with posttraumatic stress disorder: a comparative study

The incidence of mental and somatic sequelae has been shown to be very high in people who survived the Holocaust. In the current study, 80 Holocaust survivors with posttraumatic stress disorder were examined based on evaluation of their complete record (medical reports, clinical history, medical statements, and handwritten declarations of patients under oath). These survivors were compared with subjects with posttraumatic stress disorder caused by traumata other than the Holocaust. The data were analyzed for the presence of cardiovascular, gastrointestinal, and orthopedic diseases that developed in the time between the earliest medical report (expert opinion) and the latest expert opinion. Analysis revealed an increase in myocardial infarction, chronic degenerative diseases, and cancerous changes in the second expert opinion. No differences between the groups were seen with regard to sex, age at traumatization, or age at examination. Several implications of the data are discussed, including the implication that the survivors examined in this study may comprise a highly resilient group, inasmuch as they had reached an advanced age.     

Generation and Detection of True and False Alibi Statements

This article reports two experiments focusing on two stages of the alibi process. In Experiment 1, participants generated a true or false alibi for one of two dates (short or long delay). Results showed that participants were most likely to report that they could get alibi corroboration from a motivated alibi witnesses regardless of whether they were being truthful or deceptive. Changes in details to the generated alibi were frequent for both true and false statements. In Experiment 2, individuals were asked to discriminate between true and false statements. The results indicated that participants were no better than chance at detecting lies. As has been seen with in other domains (e.g. eyewitness identification), confidence had no predictive power in distinguishing lies from true statements.     

Active ingredients in anti-stigma programmes in mental health

This paper draws upon a review of the relevant literature and the results of the recent Mental Health Awareness in Action (MHAA) programme in England to discuss the current evidence base on the active ingredients in effective anti-stigma interventions in mental health. The MHAA Programme delivered educational interventions to 109 police officers, 78 adults from different community groups whose working lives involved supporting people with mental health problems but who had received no mental health training and 472 schools students aged 14–15. Each adult target group received two intervention sessions lasting two hours. The two school lessons were 50 minutes each. Knowledge, attitudes and behavioural intent were assessed at baseline and follow-up. In addition focus groups were held with mental health service users to explore the impact of stigma on their lives and facilitators of educational workshops were interviewed to provide expert opinion on ‘what works' to reduce psychiatric stigma. Personal contact was predictive of positive changes in knowledge and attitudes for the school students but not the police officers or community adult group. The key active ingredient identified by all intervention groups and workshop facilitators were the testimonies of service users. The statements of service users (consumers) about their experience of mental health problems and of their contact with a range of services had the greatest and most lasting impact on the target audiences in terms of reducing mental health stigma.