Fact-finding Flashcards
What is Scottish legal system tradition
Rationalist
What is the rationalist tradition
Enlightenment theory that everyone can understand the world by employing human reason
How has the rationalist tradition developed in Scotland
Adversarial system
Features of an adversarial system
Two competing parties who present evidence to a trier of law and a trier of fact, who use their reason to come to an appropriate conclusion
Adversarial model
Witness observes event
Court observes witness
Public observes court decision
Two barriers to reliable and accurate fact-finding
Witness testimony
ToF ability to fairly evaluate the witness
Role of a witness in adversarial system
Give oral evidence of what they observed. Gold standard of evidence in Scots law
What does their oral testimony rely on
Memory of the event
Short-term, but more often long-term
Two elements of long-term memory
Episode and semantics
What is episodic memory
The picture of what actually happened
What is semantic memory
Memory of how the world works e.g., myths and societal beliefs
How does semantic memory inhibit witness testimony
Long term memory fades
Therefore, when the episodic memory is blurry, the witness subconsciously replaces it with semantics and makes assumptions
What else impacts the reliability of witness testimony
Cognitive biases
Emotional factors
Commitment effect
What are cognitive biases
Bias held by the witness that impacts how they process information - this is an immediate interpretation issue
Cognitive bias example
Cultural bias
Allport and Postman 1947 study - white people shown situation where white man holding knife to black man. Still identified black man as the aggressor
What are emotional factors
Trauma from the event and condition during the trial
How do emotional factors impact memory
Trauma can affect memory retrieval and encoding, as witnesses are reluctant to keep re-living the horrible moment
Trial condition - anxious witnesses are more likely to remember the situation in a bad light
What is commitment effect
Whatever version of the story the witness attests to first, regardless of its truth, becomes absolute in their mind
Effect of commitment effect
Witness becomes less reliable, as they stick to fallacious beliefs
How are psychological witness factors countered
Opinion evidence prohibition
Corroboration
Opinion evidence prohibition
General prohibition on the admissibility of opinion evidence, except experts. Means that witnesses must attest to facts only, not their opinion. Cognitive biases can still skew these facts, but has some effect.
Corroboration
Every crucial fact must be proved by two separate pieces of evidence. Means that one witnesses interpretation is not enough, and their personal biases do not decide the entire trial
However, Little v HMA and LAR have made this less of a requirement. Similarly, widespread call for reform - such as Carloway report 2011
How else could psychological factors be countered
Pre-recorded evidence
Witness education
What is the role of the ToF
To hear presented evidence and come to a rational conclusion based on it
Who is the ToF in solemn and summary
solemn - jury
summary - judge
Issue with ToF
They interpret evidence and witnesses differently and take extra-judicial considerations into account
What is witness credibility
Are they telling the truth
What is witness reliability
Is that truth actually what happened
Two types of processing
Central and peripheral route
What is central route processing
Judging a witness’ evidence based on its merit
What is peripheral route processing
Judging a witness’ evidence based on surrounding factors, such as their demeanour
What type of processing presents an issue to judging a witness’ credibility and reliability
Peripheral
How does peripheral impact credibility
ToF considers witness’ demeanour, confidence, authority, reputation etc.
However, evidence shows that liars are more convincing and stress of trial situation affects demeanour more than truth.
Evidence of error of peripheral processing for credibility
Recent mock juror trials in Scotland found that jury’s correctly judged a witness’ credibility 50% of the time
How does peripheral impact reliability
Hindsight bias
Heuristics - e.g., rape myths
How are psychological ToF factors countered
Judicial direction
Juror education
Which is a greater barrier
ToF
Why ToF
Witness error can be accounted for and no one witness decides the trial. However, ToF selects which facts they will add to their narrative and makes final decision
Conclusion
Answer the question
