Chapter 3: Expert Testimony and the Role of the Expert

Taking over the courtroom

Not only informing the court, but in a sense replacing their decision-making ability.

Challenges to expert testimony: opposing expert

The opposing attorney may hire their own expert, whose views may conflict with one's own expert.

Which of the following is not part of the Daubert criteria?

The theory contains both specialized and technical knowledge.

Which supreme court case ruled that the trial judge is the gatekeeper for admission of scientific evidence?

General Electric Co. vs Joiner (1997).

What does it mean that judges are "gatekeepers"?

They decide whether to admit expert testimony on a case by case basis considering several important precedents.

A forensic psychologist testifies that an examinee is guilty. This an example of an ultimate issue testimony.

True.

How an expert is perceived affects the believability of their testimony.

True.

The standard that a state adopts (whether Daubert or Frye) does not significant impact on admissibility.

True. Focuses on qualifications of expert not on the methods.

FRE 703

Testimony can be admitted if the principles and methods are reasonably relied upon by others in the field.

General Electric v Joiner (1997)

- Abuse of discretion standard (gatekeeping belongs to the lowest court judge). - Trial court judge is the gatekeeper. - Now very difficult to overturn initial decision to admit expert testimony.

Effective expert testimony: 4 C's

- Clarity: brief, jargon-free. - Clinical knowledge: not based solely on statistics, but knowledge from clinical practice. - Case-specificity: specific case at hand. - Certainty: confidence in what they present to the court.

3 disadvantages to opposing expert

- Confuse the judge and jury. - Increase cost of the trial. - Take focus off the real issue.

Criticisms of the Frye Standard

- Difficulty defining the "scientific community". - Too conservative - excluded reliable evidence that was new.

Characteristics that increase credibility of expert witnesses

- Dressing professionally. - Maintaining good eye contact (with Judge or jury - not with attorney (trying to distract)_. - Projecting voice. - Demonstrating composure in the adversarial context.

Characteristics that decrease credibility of expert witnesses

- Excessive amount of time testifying (long-winded answers). - Testifying on issues outside of expertise. - Lack of knowledge about current case. - Inconsistencies. - Using improper scientific methods.

Kumho Tire Co. v Carmichael (1999)

- Extended Daubert criteria from scientific evidence to also technical/specialized knowledge. - Good for clinical psychology, which has less scientific evidence than experimental psychology.

Expert witness

- Forensic psychologists only assist the legal system; they do not replace the decision-making ability of the court. - Adversarial nature leads to competitive atmosphere ("Most frightening professional experience in psychology"). - Demands of expert testimony have improved clinical and research methodology.

The admissibility standard have evolved over the past century.

- Frye Standard (1923). - Federal Rules of Evidence 702 & 703 (1975). - Daubert Standard (1933).

Syndrome evidence

- Generally lack empirical support (typically based on clinical experience, not on research; high number of false positives). - Has been incorrectly used to describe as well as to prove a substantive claim in a case. - Continue to be admitted (anti-therapeutic consequences).

Daubert criteria for reliability

- Has the technique been tested? - Has it been subject to peer review? - What is its error rate? - Is it generally accepted? (Frye)

Factors that empirically influence credibility of expert witnesses

- Hired gun - experts who are retained (paid) by one side (typically defense) and have an opinion that is favorable to that side (e.g. NGRI). - Experts who testify frequently. - Experts who are not locally-based. - Experts who have only testified for defense in past. - Experts who do not actively practice. - Experts who were paid $$.

Concerns of expert testimony admissibility began to focus on?

- Junk science - expert testimony on issues that were not well established in the scientific community but useful to the legal system in some manner. - Daubert takes over.

There are potential problems with not providing ultimate issue testimony

- Not providing an ultimate opinion introduces ambiguity and can lead to a misrepresentation of a psychologist's findings. - Redding et al. (2001) surveyed legal actors (judges/attorneys) and found that most preferred the psychologist provide ultimate opinions. - Not clear if it mattes: Rogers et al. (1990) found no differences in verdict choice.

Common alternative: "penultimate" opinion

- Penultimate = before final. - Not speaking directly to legal issue, but speaking to different criteria used to inform legal issue. - Penultimate opinion example: The defendant had a mental illness but understood the wrongfulness of actions at the time of the offense.

Battered woman syndrome (Walker, 1979; 1984)

- Primarily characterized by two characteristics: cycle of violence (tension builds in relationship, acute battering incident, honeymoon phase). and learned helplessness (irrational belief that there is no way to stop abuse).

In deciding admissibility, judge balances?

- Probative value - potential of the information to help prove a particular point or decide an issue before the court. - Prejudicial impact - potential damage or bias expert testimony may cause.

Syndrome evidence (controversial aspect of expert testimony)

- Set of symptoms that occur together in a meaningful way and normally have a triggering event. - These are not usually formally recognized diagnoses.

Criticisms of expert testimony: corruption of science

- Several aspects of the interaction between psychology and law can significantly decrease objectivity. - Financial incentives. Extra-forensic relationship. - Attorney pressure. Politics and moral beliefs. - Notoriety. - Competition. - Lack of recognition of bias: "Experts wildly underestimate the biasing effects of their own conflicts of interest and other factors".

Federal Rules of Evidence

- Specific to Federal Courts only, but influenced future state standards. - FRE 702. - FRE 703.

FRE 702: any expert testimony must be based on?

- Sufficient data. - Reliable principles and methods. - The reliable application of those principles and methods to the case.

Criticisms of expert testimony

- Taking over the courtroom. - Ultimate issue controversy.

The Daubert Standard: based on decision in Daubert v Merrell Dow Pharmaceuticals, Inc. (1993)

- Updated standards for the admissibility for scientific evidence. - Builds on Frye and FRE. - Court identified two-part admissibility process: relevancy and reliability.

Example of expert testimony

- Video from the murder trial of Jeffrey Dahmer for the killing, dismemberment, mutilation, and cannibalism of 15 victims. - Pled not guilty by reason of insanity (NGRI). - This video is the defense attorney in direct examination with a clinical psychologist. - Defense attorney's goals: demonstrate (that he had a severe mental disorder, that this significantly impaired his ability to know wrongfulness of actions).

Ultimate issue controversy

- When an expert not only provides testimony to assist the court, but explicitly answers a legal question. (Whose job is this?) The court provides answer to legal question. - Melton et al. (2007) heavily argued against psychologists providing ultimate opinions, because they are not legal experts.

In Frye v US (1923), the court ruled that?

- While courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field it belongs. - Only basis for admissibility: general acceptance.

Challenges to expert testimony: cross examination

- Whoever retains an expert witness questions them first (direct-examination). - After direct examination, the opposing attorney questions the witness (cross-examination). - Finally, whoever retains the witness can question them again (re-direct). - Cross-examination is the most common challenge to expert testimony.

Battered woman syndrome primary description

- Woman believe violence is her fault. - Inability to place responsibility for violence with anyone else. - Fears for life/ life of children. - Irrationally believes abuser is all knowing/ all powerful.

Which of the following is not a criticism of expert testimony?

Being aware of biases.

What is the most common and effective cross-examination tactic?

Demonstrating inconsistencies.

Forensic psychologists viewed as "hired guns" appear more credible to the jury.

False.

If you were the psychologist, what kind of information could you provide the judge to persuade them that your test is acceptable?

How new is the test really, what is the test validity (the research behind the test), what other experts think of the test - have others used it (peer reviewed), what is the test error rate.

Kumho Tire Co. Ltd. v Carmichael (1999)

Summary of decision: Prior rulings on admissibility of scientific testimony apply to technical and specialized knowledge.

Frye v US (1923)

Summary of decision: Scientific testimony admitted if generally accepted by scientific community.

Daubert v Merrell Dow Pharmaceuticals Inc. (1993)

Summary of decision: Scientific testimony admitted if relevant and reliable according to 4 potential criteria.

General Electric Co. v Joiner (1997)

Summary of decision: Trial judge is gatekeeper for admission of scientific evidence.