week 7 Flashcards
what are the types of witnesses
fact witness
expert witness
what is a fact witness
someone who provides relevant evidence about their direct experience
what are the 2 primary functions of an expert witness
aid in understanding a particular issue relevant to the case
provide an opinion
what can fact witness testify
only what they have directly observed
what are some challenges of providing expert testimony
experts need to know not only about their testimony but about the proceedings and their role in the proceedings
providing effective testimony to the courts is difficult because of differences that exist between the fields of psychology and law
in the US what are the rules of expert testimony called
frye and daubert and federal rules of evidence (FRE702)
what are the 5 rules of expert evidence in Australia
expertise rule
area of expertise rule
factual basis rule
common knowledge rule
ultimate issue rule
in NSW, TAS, ACT they use the uniform evidence law instead of what rule
ultimate issue rule
what is the expertise rule
does the witness have knowledge and experience sufficient to entitle him or her to be held out as an expert who can assist the Court
what is the area of expertise rule
is the claimed knowledge and expertise sufficiently recognised as credible by others capable of evaluating its theoretical and experiential foundations? eg. the area of your expertise is the only area you can supply info
what is the common knowledge rule
is the information sought to be elicited from the expert really something upon which the tribunal needs the help of any third party or can the tribunal rely upon its general knowledge and commonsense eg. is this commonsense knowledge that the general public could’ve understood without an expert
what is the ultimate issue rule
is the experts contribution going to have the effect of supplanting the function of the tribunal to decide the issue before the court? eg. they cannot say whether this person is innocent or guilty
what is the factual basis rule
to what extent can an experts opinion be based upon matters not directly within the experts own observations eg. can they show the steps that got them to their conclusions
what did daubert v merrel dow propose
that evidence should be based on realibility and validity eg. testing
where does the daubet v merrell dow apply
in federal jurisdictions, but has been adopted by some states
why do we want to having things tested
potential for misrepresentation or falisificaiton
error rate
whether it has been subject to peer review
for daubert v merrell dow, testimony is admissable if it is:
provided by a qualified expert
relevant
reliable, as determined by the daubert criteria
what does the daubert criteria require from research
be peer reviewed
be testable (falsifiable through experimentation)
have a known error rate
adhere to professional standards
what type of testimony did daubert relate to
all expert testimony
what type of testimony did daubert relate to prior to kumho case
scientific testimony only
what is the rule 702. testimony by expert witnesses
a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion
what are the exemptions for rule 702
a. the experts scientific, technical, or other specialised 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
d. the expert has reliably applied the principles and methods to the facts of the case
what is the frye v usa (1923) case
james was charged with murder and protested lie detector would prove innocence. court held that polygraph lacked scientific recognition.
Revolves around general acceptance in the relevant community.
what is the criticism surrounding frye v USA
criticised as being too generous with evidence that is generally accepted (hair sample testing) but not actually validated (95% likely to be wrong)
what resulted from the frye v usa case
general acceptance test
what is the general acceptance test
in order for novel scientific evidence to be admissable, it must be established that the procedures used to arrive at the testimony are generally accepted in the scientific community
what is a major criticism for the general acceptance test
vagueness of terms general acceptance and whether trial judges can make this determination
what are the realities of expert testimony
has little to do with the fielf of expertise and more to do with:
- how the judge feels
- whether the evidence is for the prosecution or defence
what percentage of prosecution experts survive defence challenges compared to defence experts
92% compared to 33%
what percentage of prosecutors experts are admitted to trial compared to defence
95% compared to 8%
why do prosecution experts make it to trial and not defence
uniform, money, pro-prosecution bias, budget
different ways a psychologist could be an expert witness
family law court
experimental
testifying about a client (not recommended)
testifying as a mental health clinician
forensic assessor
type of psychology family law court testifying
magellan cases: physical or sexual child assault
what is experimental psychology expert witness
reaction time and eyewitness testimony, psycholinguistics
ethical principles underpinning forensic psychology:
respect for the dignity and rights of other people
responsibility to clients, society and other profession
veracity
fidelity
beneficence
non-maleficence
justice
what is veracity
honest and truthful
what is fidelity
entrusted with clients interests
what is beneficence
do good
what is non-maleficence
do no harm
what is justice
be fair and objective
what are the 3 main objects of the mental health act 2016
to improve and maintain the health and wellbeing of persons who have a mental illness who do not have the capacity to consent to be treated
to enable persons to be diverted from the criminal justice system if found to have been of unsound mind at the time of committing an unlawful act or to be unfit for trial
to protect the community if persons diverted form the criminal justice system may be at risk of harming others
what type of decision is insanity
a legal one not a clinical one
in advising the court regarding insanity, FP 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
what is meant by fitness
competent to stand trial
what do fp experts look for regarding fitness
whether the person is able to:
plead at their trial
instruct their lawyer
endure the trial
what do fp experts examine
criminal responsibility/insanity
fitness
differences between criminal responsibility and fitness
CR is behaviour at the time of offence and fitness is the behaviour at the time of examination
what is expert evidence dictated by
rules or evidence and whim
