Lecture 1: Introduction and Expert Witnesses

Question 1

What are the 4 differences between psychology and the law?

Answer 1

Question 2

What are the 3 different ways psychology is related to the law?

Answer 2

1. Psychology of the law: study of law itself
   
   • Usually lit review; why/when/where people obey laws; background
2. Psychology and the law: psychology is used to critically evaluate the assumptions being made in law (i.e. research)
   
   • Common: prejudice/bias in court cases; e.g. do people find black/white witnesses to be more/less reliable?
3. Psychology in the law: “explicit and conventional use of psychology” as a tool in the operation of law
   
   • e.g. finding a way to remove bias; giving questionnaire to jurors as a screening tool, making sure witnesses are fit to stand trial

Question 3

Who is an expert witness?

Answer 3

• Those qualified to express a professional opinion, by their training, knowledge, and experience
• Provide expertise that the triers of fact (jurors) do not possess
• Role is to assist the court and not the parties instructing them
• Main difference between experts and regular witnesses: able to give an “opinion”
  
  • e.g. in an Amicus Brief: “In my opinion, if this bias is present, this person is more/less likely to be found guilty”

Question 4

Who are the triers of fact?

Answer 4

Those who must listen to the evidence and decide on a verdict based on the facts presented at trial (i.e. the jury)

Question 5

What are the 2 types of expert witnesses?

Answer 5

1. Talk directly to a fact or consideration at issue (psychology + the law)
   
   • Competence to stand trial, suggestibility, being of sound mind (e.g. a psychiatrist)
   • Talking to the case specifically
2. Perform an educative function (psychology in the law)
   
   • Factors that cause an eyewitness to be unreliable, a victim to suggestion, an abused child is asymptomatic (e.g. a researcher)
   • Usually about mitigating bias

Question 6

What qualifies someone to be an expert witness in the USA?

Answer 6

• Measured against the Daubert Standard: a rule of evidence regarding the admissibility of expert witnesses’ testimony during United States federal legal proceedings; expert witness must meet 4 standards:
• (a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
• (b) The testimony is based on sufficient facts or data;
• (c) The testimony is the product of reliable principles and methods; and
• (d) The expert has reliably applied the principles and methods to the facts of the case

Question 7

What qualifies someone to be an expert witness in Canada?

Answer 7

The Canadian Supreme Court has expressly adopted the Daubert standard in R. v. Mohan → the Mohan Standard; 4 criteria:

1. Must be relevant to the case
2. Necessary to assist the trier of the fact
3. Shouldn’t trigger any exclusionary rules (i.e. can’t use any evidence obtained in inadmissible ways)
4. Must be given by a properly qualified expert

Question 8

Who determines if an expert witness is needed in a trial?

Answer 8

• Relevance is a question of law and so is determined by the judge
• Judges will usually sit down w/ the expert beforehand to decide if they want to call upon the expert
  
  • Necessary = if the expert evidence is outside the experience of a judge and jury

Question 9

What is “hot-tubbing”?

Answer 9

• Judges can order expert witnesses to testify as a panel in which they’re allowed to question each other as well
• “Hot-tub” meetings between experts → “identify areas of agreement and disagreement and to prepare a joint statement”
  
  • “intended to make their evidence more accessible, less adversarial and, ultimately, more useful to the trier of fact”
  • Not yet a very popular practice

Question 10

When is expert testimony necessary in a trial?

Answer 10

• Expert testimony is especially necessary in cases where jurors have little knowledge of what constitutes average situations
• e.g. What do you think the average sexual assault victim looks like?
  
  • Maybe crying, emotional, shaken up
  • But after going through police procedures, talking to lawyers, victims are usually quite put together + don’t have a lot of affect once they’re up on the stand
  • And in 80-85% of cases, this is true
  • So if you’re a juror + you think this person “doesn’t look traumatized enough” then you probably won’t believe them

Question 11

What is the role of an expert witness as an educator?

Answer 11

• Should deliver neutral education—not advocacy
• Testimony should explain general principles relevant to the case only
• Discuss the data relied upon in coming to the conclusion (and why)
  
  • And the lines of reasoning used to get these data to the conclusion being offered

Question 12

What is a social framework testimony and what does it do?

Answer 12

• Social framework testimony provides background context based on conclusions from psychological research
• Designed to inform jurors of something they didn’t already know
• Disabuse them of common but incorrect conceptions concerning the nature of (e.g.): sexual abuse, reaction of victims, how trauma affects memory, etc.

Question 13

How effective is expert testimony in child sexual assault cases?

Answer 13

• Crowley et al. (1994): Found that mock jurors who heard the expert testify rated the child witness as higher on memory ability, reality monitoring, and resistance to suggestion
  
  • Vs. notions of children as having a bad memory, being suggestible

Question 14

What are 3 possible criticisms of expert testimony?

Answer 14

• 1) That experts aren’t just testifying, they’re taking over the courtroom
  
  • May be not just informing the judge and jury, but as experts, replacing their decision-making ability
  • i.e. Introducing some sort of extralegal bias instead of taking away bias
• 2) Testify to the ultimate issue
  
  • Ultimate issue: the verdict, guilty/not guilty
  • This is an extreme form of the taking over the courtroom concern
  • The expert not only gives a conclusion but that conclusion answers the ultimate legal question
• 3) Use of experts corrupts science
  
  • The nature of our adversarial process corrupts the objective nature of science and bias may be introduced into expert’s testimony (7 possible biases)

Question 15

What are the 7 ways an expert witnesses might be biased in an adversarial system?

Answer 15

• 1) Significant monetary gain for being a witness
  
  • The hired gun effect: when an expert “intentionally shapes his or her testimony to help the side of the hiring lawyer”
  • You’re being paid for your time as an expert, not for your testimony
  • i.e. Whether you win/lose the case shouldn’t affect your pay
  • Most attorneys actually do pick experts based on knowledge, communication skills, and reputations, BUT the bias is there
• 2) Extra-forensic relationships—i.e. How was the expert found? Were they a friend of the lawyer?
• 3) Attorney pressure—the attorney wants to win; they hired you + want to you say something to help their side
  
  • BUT the expert is SUPPOSED to be objective and honest. Conflict?
• 4) Political and moral beliefs —bias from the expert themselves
  
  • Can be dealing w/ death penalty, abortion, political issues, etc.
  • Should and consider your biases and refuse cases where you can’t manage them
• 5) Notoriety—being part of the media barrage can be attractive
  
  • Run the risk of getting too close to fame in high profile cases and lose objectivity
• 6) Competition—trying to trump the opposing expert instead of being objective
  
  • The legal process itself encourages this with our adversarial style
• 7) Biggest problem: lack of recognition of bias
  
  • Should always be on guard—the best have a little doubt so they’re always looking for it