10. Court Phase 3: Expert Testimony Flashcards
What are the rules of expert testimony called in the US?
‘Frye’, ‘Daubert’ and
Federal Rules of Evidence (FRE 702)
What are the five rules of expert evidence in Australia?
- Expertise Rule
- Area of Expertise Rule
- Factual Basis Rule
- Common Knowledge Rule
- Ultimate Issue Rule
When states use Uniform evidence law for expert testimony, what rule is taken out?
The Ultimate Issue Rule
What states use the Uniform evidence law?
ASW, TAS, ACT
What do the Frye and Daubert rules relate to?
the relate to scientific testimony
What argument does scietific testimony allow?
Allows argument in a Frye and Daubert state that expert is not really a scientist, but holds an area of specialised
knowledge so rules don’t apply
Why is the Kumho decision not liked?
‘Kumho’ decision is not liked because it says the rules apply to everybody, not just scientists
Why dont may people use the Kumho decision?
Many are opposed to and do not use this decision
because it makes it more difficult for prosecution
witnesses to get admitted
What is FRE 702 rules of expert evidence?
FRE 702 are not specific to scientific evidence, but
any specialised expertise (scientific, technical or
otherwise)
What happened in Frye v United States?
Rule from 1923 governing admissibility of lie-detector
test
• James Alphonso Frye charged with murder and
protested lie-detector would prove innocence
• Court held that evidence lacked scientific recognition
• Revolves around general acceptance in the relevant
community
• Criticised as being too generous with evidence that is
generally accepted but not actually validated
What happened in Daubert v Merrell Dow Pharmaceuticals Inc.?
• Proposed that evidence should be based on
reliability and validity, i.e. testing
– Potential for misrepresentation, or falsification
– Error rate
– Whether it has been subject to peer review
• Principle of falsification should be cornerstone
of expert evidence
• Only applies in federal jurisdictions, but has
been adopted by some states
What are the issues of expert testimony?
• May have very little to do with field of expertise, area of expertise,
ultimate issue, common knowledge or factual basis
• May have more to do with how the judge feels on a given day or
about certain evidence/experts
• Or whether an expert is testifying for the prosecution or defence
• Review of Federal criminal cases in the US found 92% of
prosecution experts survive defense challenges, while 33% of
defence experts survive prosecution challenges
• In federal appellate criminal cases, 95% of prosecutors’ experts
are admitted at trial while only 8% of defence experts are allowed
to testify
• Reasons? Uniform, defence as “whores”, pro-prosecution bias
What do many people who commit crimes possess?
• Many people who commit crimes have mental health issues
What do some mental illnesses allow for?
Some illnesses allow for use of the Mental Health Act 2000 to determine if person has an ‘unsound mind’, experts are
needed to make this assessment
How can mental illnesses affect conviction?
Mentally ill can be deemed ‘not guilty by reason of mental illness’ by Mental Health Court (or unfit), and have their charges discontinued
Who may the DPP, Defence, family or court refer a defendant to?
DPP, Defence, family, or court may refer criminal defendant to expert for assessment, then to MHC
what may the court order to determine whether person can exercise the defence of insanity?
Court will order independent examinations to determine
whether the person has a defence, i.e. whether they were of ‘unsound’ mind at the time. Decision is a legal one, not a clinical one, but results in a forensic order made for treatment
What do forensic orders often involve?
Forensic orders may involve involuntary detainment at a
mental health facility, depending on: seriousness, risk to public, and treatment needs
What do forensic psychologists look for in a person when advising the court?
In advising the court, FP experts look for whether the person
had the capacity to
– Understand what they were doing
– Control their actions
– Know that they should not do the act, or make the
omission
They are also examined for fitness (competnece)
When assessing the fitness or competence of a defendant, what do forensic psychologists look for?
FP experts look for whether the person is able to
– Plead at their trial
– Instruct their lawyer
– Endure the trial
• They need to be able to do these things without serious
adverse consequences to their condition
What are the categories of “unfitness”?
Temporary or permanent
What is temporary unfirness?
forensic order and return to criminal court when fit
What is permanent unfitness?
charges discontinued, forensic order
What do forensic psychology experts examine in criminal responsibility?
Behaviour at time of offence • Uncontrollable impulses or delusions • Rationality or understanding of reality • Prior hospitalisations, rulings of unfitness • Major psychiatric disorders • Results of actuarial measures and SPJ • intentional intoxication doesn’t count
What do forensic psychology experts examine in fitness?
• Behaviour at time of examination • Psychosis • Communication skills • Understanding of charges, roles, consequences, etc. • Results of actuarial measures and SPJ
what defences are difficult to make?
Not criminally responsible (aka unsound mind) defences are difficult to make
Many have mental illness influencing offences, but few
meet the requirements of unsound mind
What sort of defence is substantial impairment?
Substantial impairment is a partial defence which allows
for more flexibility for mentally impaired offenders – e.g. takes murder to manslaughter
What do experts opine to when assessing unsound mind?
Experts opine as to same criteria as unsound mind, but lower threshold
Example - this used to be applicable to someone who
killed an abusive partner
What are some examples of where FPs have offered expert testimonies?
– Psychological autopsy (experimental and clinical)
– Automatism (clin)
– Profiling (exp, clin)
– Intent/State of mind (exp, clin)
– Psycholinguistics (exp)
– Risk/threat assessment (exp, clin)
– Interviewing, memory, line-ups, etc. (exp)
What happened in R v Gilfoyle?
• In 1992, Paula Gilfoyle was found deceased in her garage • Police cut her body down before taking photos • Eddie and Paula had been having affairs and the relationship was off and on • A suicide note was present, which experts determined was written by Paula • FP/IP David Canter opined suicide note was faked • http://www.eddiegilfoyle.co.uk/suicideletter.htm • Judge ruled Canter could not testify because he had never studied written communications • Even so, his certainty cemented prosecutor’s position that Eddie Gilfoyle killed his wife; dictated strategy taken • Canter’s opinion was based on psycholinguistics of the suicide note (word counting) • Eddie Gilfoyle sentenced to life in 1993 • Canter later changed his opinion; becoming an advocate for Gilfoyle’s innocence • Did not meet Gilfoyle earlier, now realised he was mistaken in his judgments of Gilfoyle’s ability to be calculating • Later conducted study into suicide notes • Found they are very difficult to fake
What is expert evidence dictated by?
Expert evidence dictated by both rules of evidence and whim
Which side is allowed form rein?
Prosecution experts
