Forensic Psychology

1. Forensic Psychology Chapter 3: Expert Testimony and the Role of An Expert

2. General Roles • Researcher • All areas of specialty contribute to the knowledge base using the scientific method • Consultant to law enforcement • Must consider who the client is • Personnel selection, promotion, training • Trial consultant • Litigation consultant or jury consultant • Hired by attorneys to help with jury selection, witness preparation, or trial strategy

3. Specific Roles Evaluator and assessor of individuals Competence Brain functioning Psychopathology In a forensic assessment, you must make sure that the interviewees know that their answers will not be kept confidential Expert witness Conduit-educators: share what the field of psychology knows Philosopher-ruler/advocates: share information that is relevant to their side Hired guns: will only help the side that hired them

4. Specific Roles Expert Testimony Assist the law directly by informing the Courts of psychological findings and their application to a particular legal question. Role is to assist the trier of fact Not to usurp the authority of the Judge Experts do not testify in Court at high frequencies—most cases settle out of court.

5. Specific Roles Expert Testimony The adversarial nature of the legal system is not the atmosphere of collegiality and open discussion found in academia or group practice of psychotherapy. Rather, Testimony is: Very public Expert is truly alone Stressful

6. 1846 In the U.S. Amariah Brigman testifies in murder trial of John Johnson Hugo Munsterbergthe Father of Forensic Psychology Published On the Witness Stand in 1908 Raising the position of the profession to one of importance in public life, like other scientific experts Demonstrated the fallibility of memory and eyewitness testimony Offered testimony as an expert witness in highly publicized trials History of the Expert Witness

7. 1909 John Henry Wigmore, Dean of Northwestern Law School and important legal scholar, writes a fictional trial in the Illinois Law Review that places Hugo Munsterbergon trial for libeling the legal profession. Result: Psychology diminished or disregarded in the eyes of the law. History of the Expert Witness

8. Prior to 1962, only psychiatrist were consistently serving as expert witness. Jenkins v. United States (1962). In an opinion by Judge David Bazelon of the DC Circuit Court of Appeals stated that clinical psychologist, because of their significant training and expertise, should not be barred from testifying on mental health issues. Ewing (2003) if not for the Jenkins decision, forensic psychology would not have experienced the growth is has had over the past 40 years. History of the Expert Witness

9. Probative Value of evidence—a piece of information helps prove a particular point or is useful in deciding an issue before the court. Prejudicial—the potential damage or bias a piece of evidence or testimony may cause. Courts must decide if the evidence or testimony is more beneficial (probative) or more prejudicial (harmful in creating prejudice or bias in minds of jurors or the Court) Admissibility of Expert Testimony

10. Admissibility of experts’ testimony The Frye Standard William Marston observes correlations between lying and blood pressure. In 1915 builds a device to measure changes in blood pressure and uses to infer truthfulness. Marson’s testimony becomes the subject of Frye V. U.S.

11. Admissibility of experts’ testimony The Frye Test • Frye v. United States, 1923. The DC Circuit Court of Appeals stated 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.”

12. Admissibility of experts’ testimony The Frye Test Well-recognized standards regarding principles or evidence for a particular field should determine the admissibility of expert testimony. Key basis for allowing scientific experts to testify under the Frye Standard was that of general acceptance in the field. Frye still operative in some states (New York) Strongly criticized (e.g. Junk Science findings that smoking does not cause cancer)

13. ADMISSIBILITY OF EXPERTS’ TESTIMONY Federal Rules of Evidence Additional guidelines were established in 1975 Rule 702, Qualified experts can testify “if scientific, technical, or other specialized knowledge will assist the trier of fact…” General acceptance AND what ever is relevant and helpful to the trier of fact

14. DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC. (1993) • In 1974 Joyce Daubert gave birth to a son with a deformed limb after taking Merrell Dow’s morning-sickness drug Bendectin. • Drug eventually removed from the market. • Many cases. Some large awards for plaintiffs.

15. DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC. (1993) • Manufacturers argue for summary judgment—”if all cases involving disputes between scientific experts must go to trial, manufactures may be forced to remove their products from the market and will be disinclined to create and market new products.” (Birmbaum & Crawford, 1993, p.18). • Merrell Dow argued it is up to the judge to determine if a foundation existed for an expert’s testimony that was grounded in agreed-upon standards set by the scientific community.

16. DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC. (1993) • Plaintiffs argue for lenient standards of admitting all relevant evidence—leave to the jury those decisions about the acceptability of scientific methodology. • Plaintiffs accuse the appeals court of a “blatant abuse of judicial power” in “trampling over” the goal of making the courts more open to scientific evidence.

17. DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC. (1993) • The U.S. Supreme Court reverses the lower court decision to exclude the plaintiff’s expert evidence and held that the Frye Test of “general acceptance” was not the proper rule for deciding the admissibility of scientific evidence. • Trial Judge must act as gatekeeper when deciding admissibility of scientific evidence.

18. DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC. (1993) • Judge must act as gatekeeper when deciding admissibility of scientific evidence. • Two part admissibility screening process • Relevancy • Reliability (Note: What judges call “reliable,” psychologists call “Valid.” “Reliable” to psychologists means consistent.

19. DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC. (1993) • Judge as gatekeeper. An obligation of Federal Judges to ensure that all scientific testimony or evidence be not only relevant, but reliable • Two part admissibility screening process • Relevancy • Relevant evidence—must relate to the issue. • Relevant evidence can be excluded when the probative value is outweighed by the prejudicial impact of the testimony.

20. RELIABILITY: FOUR CRITERIA UNDER THE DAUBERT STANDARD Testability or “falsifiability” of the theory or technique. Has it been tested. Whether the scientific findings have been subjected to peer review Whether there is a known or potential error rate for the scientific technique. Whether the methods used and conclusions reached are generally accepted in the relevant scientific community

21. THE DAUBERT STANDARD: PRO & CON PRO: Daubert is consistent with the Federal Rules of Evidence—Qualified experts can testify “if scientific, technical, or other specialized knowledge will assist the trier of fact…” General acceptance AND what ever is relevant and helpful to the trier of fact. CON: How will judges, lacking scientific expertise, evaluate the scientific value of the expert testimony? Does Daubert open the door to “Junk Science” or do just the opposite?

22. Additional Cases that Clarify the Scope of Daubert, e.g. the limits of the admissibility of expert testimony General Electric Company v. Joiner (1997) Kumho Tire Co. v. Carmichael (1999)

23. Additional Cases that Clarify the Scope of Daubert, e.g. the limits of the admissibility of expert testimony General Electric Company v. Joiner (1997) If an “analytical gap” existed between a scientific expert’s knowledge and the conclusions expressed in the expert’s testimony, that testimony could be excluded from evidence. The trial court judge is the ultimate arbitrator of the scientific merit for an expert’s testimony. Trial court judge must be a vigilant “gatekeeper” who accesses the linkages in expert’s testimony.

24. Additional Cases that Clarify the Scope of Daubert, e.g. the limits of the admissibility of expert testimony Kumho Tire Co. v. Carmichael (1999) Extends Daubert ruling to nonscientific expert witnesses who claimed specialized knowledge. Carmichael family wanted to present testimony of a “tire failure expert.” Trial court questioned that his methodology could accurately determine the cause of the tire’s failure. Supreme Court—Same standards (peer review or an analysis of error rates ) apply to any expert.

25. CHALLENGES TO EXPERT TESTIMONY • Cross-examination • Opposing Expert • Judicial Instructions

26. FACTORS THAT INFLUCNED EXPERT WITNESS CREDIBILITY Professional Dress and Demeanor Familiarity with the Courtroom Maintaining Good Eye Contact Voice and Composure “Hired Gun” Effect

27. CRITICISMS OF EXPERT TESTIMONY • Taking over the courtroom • Promising too much • Substituting advocacy for scientific objectivity • Letting values overcome empirically-based findings • Doing a cursory job • Maintaining dual relationships and competing tasks

28. CRITICISMS OF EXPERT TESTIMONY • Ultimate Opinion Testimony • Corruption of Science • Financial incentives • Extra-forensic relationship • Attorney pressure • Political and Moral Beliefs • Notoriety • Competition • Lack of Recognition of Bias

29. ETHICS OF THE EXPERT • Competence • Informed Consent and Confidentiality • Financial Arrangements • Multiple Relationships