10. Court Phase 3: Expert Testimony

Question 1

What are the rules of expert testimony called in the US?

Answer 1

‘Frye’, ‘Daubert’ and

Federal Rules of Evidence (FRE 702)

Question 2

What are the five rules of expert evidence in Australia?

Answer 2

• Expertise Rule
• Area of Expertise Rule
• Factual Basis Rule
• Common Knowledge Rule
• Ultimate Issue Rule

Question 3

When states use Uniform evidence law for expert testimony, what rule is taken out?

Answer 3

The Ultimate Issue Rule

Question 4

What states use the Uniform evidence law?

Answer 4

ASW, TAS, ACT

Question 5

What do the Frye and Daubert rules relate to?

Answer 5

the relate to scientific testimony

Question 6

What argument does scietific testimony allow?

Answer 6

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

Question 7

Why is the Kumho decision not liked?

Answer 7

‘Kumho’ decision is not liked because it says the rules apply to everybody, not just scientists

Question 8

Why dont may people use the Kumho decision?

Answer 8

Many are opposed to and do not use this decision
because it makes it more difficult for prosecution
witnesses to get admitted

Question 9

What is FRE 702 rules of expert evidence?

Answer 9

FRE 702 are not specific to scientific evidence, but
any specialised expertise (scientific, technical or
otherwise)

Question 10

What happened in Frye v United States?

Answer 10

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

Question 11

What happened in Daubert v Merrell Dow Pharmaceuticals Inc.?

Answer 11

• 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

Question 12

What are the issues of expert testimony?

Answer 12

• 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

Question 13

What do many people who commit crimes possess?

Answer 13

• Many people who commit crimes have mental health issues

Question 14

What do some mental illnesses allow for?

Answer 14

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

Question 15

How can mental illnesses affect conviction?

Answer 15

Mentally ill can be deemed ‘not guilty by reason of mental illness’ by Mental Health Court (or unfit), and have their charges discontinued

Question 16

Who may the DPP, Defence, family or court refer a defendant to?

Answer 16

DPP, Defence, family, or court may refer criminal defendant to expert for assessment, then to MHC

Question 17

what may the court order to determine whether person can exercise the defence of insanity?

Answer 17

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

Question 18

What do forensic orders often involve?

Answer 18

Forensic orders may involve involuntary detainment at a

mental health facility, depending on: seriousness, risk to public, and treatment needs

Question 19

What do forensic psychologists look for in a person when advising the court?

Answer 19

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)

Question 20

When assessing the fitness or competence of a defendant, what do forensic psychologists look for?

Answer 20

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

Question 21

What are the categories of “unfitness”?

Answer 21

Temporary or permanent

Question 22

What is temporary unfirness?

Answer 22

forensic order and return to criminal court when fit

Question 23

What is permanent unfitness?

Answer 23

charges discontinued, forensic order

Question 24

What do forensic psychology experts examine in criminal responsibility?

Answer 24

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

Question 25

What do forensic psychology experts examine in fitness?

Answer 25

• Behaviour at time of examination
• Psychosis
• Communication skills
• Understanding of charges, roles,
consequences, etc.
• Results of actuarial measures and SPJ

Question 26

what defences are difficult to make?

Answer 26

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

Question 27

What sort of defence is substantial impairment?

Answer 27

Substantial impairment is a partial defence which allows

for more flexibility for mentally impaired offenders – e.g. takes murder to manslaughter

Question 28

What do experts opine to when assessing unsound mind?

Answer 28

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

Question 29

What are some examples of where FPs have offered expert testimonies?

Answer 29

– 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)

Question 30

What happened in R v Gilfoyle?

Answer 30

• 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

Question 31

What is expert evidence dictated by?

Answer 31

Expert evidence dictated by both rules of evidence and whim

Question 32

Which side is allowed form rein?

Answer 32

Prosecution experts