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.     

Law reform, politics and mental health

A major problem of democratic government is to get lawmakers to address controversial and sensitive subjects such as mental health law reform. By reference to current and past projects in the Australian Law Reform Commission, its Chairman outlines the way in which permanent law reform agencies can mobilise expert and community opinion to help the lawmaking process address sufficiently the needs of law reform. After outlining briefly the history of mental health law reform in English-speaking countries, the author suggests that moves for reform tend to come in 'cycles' or 'waves'. This is especially so in federations such as Australia. Reforms introduced in South Australia in 1976 are now working their way into the laws of other jurisdictions of Australia, where mental health law is basically a state concern. The reforms deal with such matters as legal representation for persons involuntarily committed and stricter definitions of circumstances for and objectives of hospitalisation of the mentally ill. Some comments are offered on new approaches to the defence of insanity in criminal trials following the jury verdict in the Hinkley case arising out of an attempt on the life of a President of the United States. The implications of this and other cases for the 'anti-psychiatry' movement are referred to and discussed. The author concludes with comments on the implications of mental health law reform for democracies. He suggests a law for law reform agencies in reconciling needs for law reform and community tolerance of change.     

Psychiatric testimony and the "reasonable person" standard

The aim of this article is to explore the boundaries of psychiatric testimony in criminal cases. In a series of vignettes, the author describes applications of psychiatric testimony in nontraditional areas. These are criminal cases in which the defendant-who was not mentally ill-acted in response to a situation that would tend to trigger violence in many persons: protection of self or others. In scenarios involving self-defense, duress, and passion/provocation, the dynamics involve interpersonal situations that give rise to behavior that may be entirely foreign to the defendant but that could not have been avoided. The law looks at these matters through a "reasonable person" standard: what the ordinary citizen would have done. In principle, there is often no need for expert testimony, because judges and jurors are presumed able to assess reasonableness, justification, or provocation. The trier of fact, however, could use a psychiatric explanation to assess culpability. The author discusses the cases in terms of application and admissibility.     

The reliability of evidence about psychiatric diagnosis after serious crime: Part I. Agreement between experts

The purpose of this study was to assess the extent of agreement on psychiatric diagnosis in written evidence provided by experts in serious criminal matters in Australia. We found good or very good inter-rater agreement on the diagnoses of acquired brain injury, schizophrenia-spectrum psychosis, substance-induced psychotic disorder, and intellectual disability. There was moderate agreement on the diagnosis of depressive and personality disorders. Agreement on anxiety disorders, in particular post-traumatic stress disorder, was poor. Agreement on the principal Axis I diagnosis was moderate, and there was a similar probability of agreement within pairs of experts engaged by the same side and those engaged by opposite sides. Concern about bias in expert psychiatric opinion in criminal cases appears to have been overstated. There was little evidence to suggest that experts' adversarial roles influenced their opinions on psychiatric diagnosis.     

Conscious Will and Responsibility,edited by Walter Sinnott-Armstrong and Lynn Nadel

The Mental Health (Compulsory Assessment and Treatment) Act 1992 (NZ) ushered in a new definition of mental disorder which shifted from diagnostic to phenomenological, containing more explicit severity criteria. Failure to understand that mental disorder under the Act was not the same as mental illness, combined with a more litigious environment, as well as structural changes in the mental hearth services resulted in failure of provision of compulsory care to many who needed it. The Act was seen as deficient. This resulted in the introduction of potentially draconian amending legislation into the New Zealand Parliament in 1994. Increasing understanding about interpretation of the Act and better cross‐disciplinary understanding among Family Court Judges, counsel for the patient and responsible clinicians has resulted in more stability of decisions of the extent of compulsory care. For instance, serious danger to others was initially interpreted very narrowly but now includes psychological and physical harm, and is not linked to a criminal standard. Further, the interpretation of the most ambiguous terms in the statutory definition (volition, cognition) has become more narrow and for the most part been applied to mental illness alone. With use, the original presumed limits to the definition of mental disorder have been extended. Debate must occur about the appropriate limits of such interpretation.     

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.     

Young People and the Justice System: Consideration of Maturity in Criminal Responsibility

It is almost 30 years since the policy which underpins the current Victorian Mental Health Act was developed. The delivery of mental health services has changed dramatically over those years. As a result, the Act has been amended on numerous occasions, rendering it inaccessible for most people other than mental health law specialists. This article suggests that it may be time to legislate again, despite acknowledging that legislation tends to follow rather than precede change in mental health service delivery. The article traces the history of Victorian mental health legislation, from the opening of the first asylum in 1848, to the agitation for reform in the late 1970s which led to the passage of the current Act. Law reform is enhanced by clear identification of the values that underpin our laws. The new Victorian Charter of Human Rights and Responsibilities Act and the UN Convention on the Rights of Persons with Disabilities may assist in identifying important contemporary values which should inform new mental health laws. The following areas merit consideration when new mental health laws are considered: advance directives, the interaction between mental health and guardianship laws, information for family and friends of patients, the extended use of community treatment orders, the grounds for civil commitment, the jurisdiction of the Mental Health Review Board of Victoria, and the establishment of a commission to coordinate research and planning for the delivery of mental health services.     

Avoiding ipse dixit mislabeling: post-Daubert approaches to expert clinical opinions

Recent Supreme Court decisions emphasize the need to regulate the admissibility of expert testimony by means of standards that require opinions to go beyond ipse dixit--that is, that are based on more than the fact that the expert said it. The authors discuss subtextual themes underlying this issue and suggest approaches to attaining expert clinical opinions that reduce the likelihood of being mislabeled as ipse dixit contributions. The approach involves providing substantiation of testimony by offering a reliable methodologic basis for communicating the relevant opinion in a thoughtful and intellectually rigorous manner. A model is offered, emphasizing a process approach to opinion formulation and reformulation prior to deposition and trial. This approach addresses not only the Supreme Court's current focus on moving expert opinion beyond ipse dixit, but also such concerns as possible distortions of an expert opinion in the adversarial process. Since judicial determinations may vary depending on many factors, however, even the most careful process of opinion formulation cannot guarantee admissibility. The article assumes a general familiarity among forensic readers with the Federal Rules of Evidence and the recent series of Supreme Court decisions in this area.     

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.     

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.     

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     

L’expert judiciaire et l’irresponsabilité pénale. Débats et controverses au cours du temps et questions contemporaines

IntroductionSince the creation of the Société Médico-Psychologique, an accumulation of discussions at the national level has resulted in legislative changes, which concern people with mental disorders. Public opinion has now become a stakeholder, prompting us, as judicial experts, to address criminal irresponsibility. The authors wish to give an account of the evolution of the ideas and professional practices in alienism and forensic psychiatry regarding criminal liability, irresponsibility, and the evolution of legislative measures in this realm.MethodsTo do so, they rely on the use of their forensic psychiatric and medico-psychological expertise, which has been effective for many years and remains relevant today, as well as on their clinical and theoretical research activities. The methodology is based on the analysis of language and the critical approach of historical and clinical epistemology.Forensic IssuesThey are examined taking into account the cultural and scientific context from the middle of the 19th century to the beginning of the 21st century. Criminal responsibility and irresponsibility are ancient principles codified in Roman law by Marcus Aurelius and which evolved with the political, social and religious conjunctions of each epoch. Whether the reason given for the recognition of criminal irresponsibility is referred to as madness, degeneration, insanity, dementia, psychic abnormality or discernment, it has always been the subject of research by physicians, alienists, and then psychiatrists. The authors analyze the role of the dissemination of the debates from the creation of the Annales Médico-Psychologiques (in 1843) and of the Société Médico-Psychologique (in 1852), illustrating them with some famous cases in specialized literature. The importance of forensic discussions at the Société Médico-Psychologique animated the end of the nineteenth century and the first part of the twentieth century, contributing to the enrichment of psychiatric semiology and to the opening up of new research, notably methodological. This will lead to an evolution of the conceptions relative to what induces the criminal act and will no longer limit irresponsibility to a diagnosis of insanity or dementia ; the study of psychic functioning will be put forward with the notion of discernment and those of self-control of one's actions. If numerous theoretical debates within the profession have fueled “expert disputes” sometimes disqualifying the role of experts, they remained, however, in the medical and judicial field. Over the past decade, these issues have been broadened to include societal debates around issues related to dangerousness and recidivism. This has become a dominant theme in scientific gatherings, before the eruption into the criminal field, of the increasing role played by victims and victims’ associations. Law No. 92-683 of 22 July 1992 introduced into the Penal Code Article 122-1 (1994 Penal Code) replacing Article 64, by inserting the notions of alteration or abolition of discernment. This distinction has given rise to new difficulties and tensions in expert practice ; the law came into force in 1994. During the 2000s, a series of high-profile homicides involving people with serious mental disorders, sometimes carried out in a recidivist situation, hit the headlines in France. This resulted in a shift in public opinion that led to the law of 25 February 2008 on criminal irresponsibility. The law put an end to the judicial dismissal of cases on the grounds of criminal irresponsibility, by introducing other provisions in the form of security measures (judicial supervision and detention of security). This law creates new interferences between legal procedural issues and psychiatric practice ; it also emphasized the importance of the role of experts by creating new missions, including the expertise of dangerousness. The movement linked to the consideration of the place of victims has been accentuated, both by the objective of obtaining a judgment for the perpetrator of the acts, and by the solicitation of their participation in the successive phases of the procedure. We have recently moved on to questions and controversies about the lack of accountability leading to the law of 24 January 2022. The current article 122 did not specify the origin of the psychic disorder causing the abrogation of discernment, which was interpreted by the Minister of Justice as “a legal void”, which must be “filled with urgency”. Title I states: “Provisions limiting criminal irresponsibility in cases of mental disorder resulting from self-induced psychoactive substances”. All these new provisions, as well as the creation of new incriminations and qualifications, certainly engender debates between magistrates and experts, but they are above all part of a concern of the public authorities about the necessity of setting up “provisions limiting criminal liability in the case of mental disorder”. The interpretation of the contribution of the law to a criminal act remains complex, according to the authors, in terms of psychopathological and etiopathogenic research. Within the context of expert practice, this new law will make it necessary to add new questions for the current missions, and it can only result in an increase in the complexity of these missions and in a risk of confusion in the answers.ConclusionThe authors show that the question of criminal liability does not solicit the same questions and problems in the judicial field (the point of view of the forensic psychiatrist, during the expert examination) or in the societal field with the confrontation with all the representations that are attached both to madness and to the passage to the criminal act, which since the beginning of the twentieth century involves other emerging disciplines. From their point of view, the assertion that a psychic disorder can be of such severity so as to affect the free will and discernment of the perpetrator of a criminal act at the time of the offence, must remain within the domain of psychiatry, even if the new law of 24 January 2022, through several of its provisions, would attempt to eliminate this necessity.     

Le cadre juridique régissant la responsabilité pénale de l’aliéné mental au Maroc

IntroductionThe lunatic is any person deemed unfit for societal life. Nowadays, insanity is defined as a mental illness. The psychiatric expertise constitutes a judicial procedure designed to determine the insanity with regards to the effects on penal responsibility.ObjectivesThe aim of this work was to highlight the different rules governing penal responsibility of the insane in Morocco. It also aims to emphasize the main function of the expert psychiatrist in determining the mental status of the offender at the time of the crime.MethodThis is a legal analysis of the effects of insanity on criminal liability. It is based on the examination of different rules governing the penal procedure, and the study of different judgments and case treatments either by the judge, the expert psychiatrist or by the institutions where the insane was placed.ResultsTo detail procedural rules of criminal responsibility of the insane in Morocco as well as the role of the psychiatric expertise.DiscussionThe fundamental question is to determine whether the penal responsibility of the offender in the case of insanity is assumed solely by the criminal court, or whether it is mandatory to obtain the opinion of the expert psychiatric. Although the psychiatric expertise is the cornerstone of the procedure, the criminal court has the potential power to judge the different elements of the criminal process, whereas the medical expertise represents only one.ConclusionThe determination of insanity is paramount due to the importance of the effects that it may have on the criminal responsibility of the offender. Even if the legislature cares to determine the conditions and effects of the insanity on criminal responsibility, the boundaries between the judicial and medical expert intervention remain unclear. Therefore, it is crucial to establish a detailed legal schedule to specify the boundaries and limits, considering that both judge and psychiatrist must collaborate to find the way to improvement.     

Combined alcohol dependence and personality disorder and its legal consequences with respect to commitment

People frequently consuming an excessive amount of alcohol often show symptoms of personality disorder. Personality disorder and alcohol dependence are frequently connected with each other. However, there are only very few conditions enhancing concomitant dependence and personality disorder to the rank of a mental disease according to German guardianship legislation. If the patient's condition meets the criteria of a psychic disease and endangers his own health and public safety, commitment to a mental hospital or guardianship are justified. The purpose of this clinical analysis was to compare the medical proposal for treatment with legal prerequisites which are indispensable for involuntary admission to a mental hospital. Whereas the Psychiatric Disorders Act intends to avert danger to the public, guardianship legislation aims at individual help. We present a patient who suffered from alcoholism and simultaneously met criteria of a serious personality disorder, which was classified according to ICD-10 (F 60.31). As the aggravation of the symptoms was most likely to entail serious danger to his health the judge ordered immediate involuntary admission. Two other patients had similar comorbidity but had to be released from hospital because of finalisation of detoxification. Neither dependence nor personality disorder were pronounced enough to restrict the rights of the individual. Our analysis shows that the psychiatrist must present with an expert medical report that quantifies the extent of alcoholism and personality disorder and characterises them as psychic disease. Consequently, for the purpose of quantifying the extent of dependence, we recommend to apply the European Addiction Severity Index whose suitability should be assessed.     

The mental illness of Captain Hyndman.

The mental illness of Captain Charles Robertson Hyndman resulted in his compulsory hospitalization in Tarban Creek Asylum in 1843 and 1864-1866. His illness, and the question of mental health law which was subsequently raised, were of great significance for the colony of New South Wales in that it led to the first specific lunacy legislation in the state. The issues raised are still the fundamental questions with which contemporary mental health law is concerned.     

Epilepsy,employment and the Disability Discrimination Act. Does legislation make a difference?

The Disability Discrimination Act 1995 confers limited but significant rights on people with disabilities in the United Kingdom. In this article we focus on the protection that the Act offers to people with epilepsy in the sphere of employment. We examine the exempt categories of employment and the extent to which epilepsy qualifies as a disability for statutory purposes. We go on to explore the impact of the new law on the recruitment and employment experience of people with epilepsy. The shortcomings of the legislation are highlighted and improvements, which would benefit people with epilepsy, are recommended. Claims featuring epilepsy, brought under the Act, are analysed to illustrate how the legislation is being interpreted and applied.     

The Role of Impulse Control Disorders in Assessing Criminal Responsibility: Medico-Legal Perspectives from South Africa

The role of impulse control disorders on criminal responsibility is currently a controversial issue. With the advent of the DSM-5 various questions arise which specifically relate to the nature and impact of impulse control disorders on criminal responsibility. Further anomalies, in addition, relate to the differences between the classification of impulse control disorders in the DSM-IV-TR as opposed to the recent DSM-5. To date the issue of impulse control disorders has only been addressed in limited criminal case law in South Africa and indicates that courts generally view these disorders as mitigating factors during the sentencing procedure. The focus of this contribution will be to revisit the diagnostic framework for impulse control disorders with specific reference to the criteria provided for in the DSM-5 in order to assess its applicability to a finding of diminished criminal responsibility as provided for in section 78(7) the Criminal Procedure Act 51 of 1977, and whether it could in certain circumscribed circumstances fulfil the criteria for the defence of pathological criminal incapacity, or more commonly known as the insanity defence. The vital and essential role of the mental health expert within such context will be illustrated.     

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.     

Dangerosité psychiatrique et responsabilité pénale atténuée : à propos de la condamnation à la réclusion à perpétuité d’un schizophrène auteur d’un homicide sexuel sadique

The second paragraph of article 122-1 of the French Criminal Code provides for a reduced penalty in criminal matters (Court of Assizes) when the offender is suffering at the time the act is committed from a mental disorder that reduces his liability. This legal provision is not always respected, as shown by the sentencing to life imprisonment of a chronic psychotic patient who committed a sexual homicide (sadistic rape). The Court of Assizes found that the great dangerousness of this schizophrenic, with a multiple criminal record and who had refused his treatment, justified his conviction, while the psychiatric expertise concluded that he should benefit from a reduction on his criminal liability. The sentence was passed without the level of severity of his mental state having been verified by a new expert. The author therefore questions the “ethical” nature of this court decision which, albeit legal, is contrary to the spirit of the law. There was no appeal against the sentence.     

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.