Judge and attorney experiences, practices, and concerns regarding expert testimony in federal civil trials.

The results of 3 surveys (1 each of federal judges in 1991 and 1998 and another of attorneys in 1999) indicate that practices and beliefs concerning expert testimony have changed in the wake of the 1993 Supreme Court decision on admissibility in Daubert v. Merrell Dow Pharmaceuticals, Inc. Reporting both on their general experience with expert testimony and on their most recent civil trial involving such testimony, judges and attorneys indicated that judges were more likely in 1998 than in 1991 to scrutinize expert testimony before trial and then limit or exclude proffered testimony. The results describe common problems with expert testimony, the characteristics of trials in which expert testimony is introduced, and the types of experts who testify. (PsycINFO Database Record (c) 2011 APA, all rights reserved)     

The problem of "helpfulness" in applying Daubert to expert testimony: Child custody determinations in family law as an exemplar.

In Daubert v. Merrell Dow Pharmaceuticals, Inc. , (1993), the U.S. Supreme Court considered the meaning of Federal Rule of Evidence (FRE) 702 in regard to the admissibility of scientific evidence. In this article, the authors argue that the relevance, reliability, and helpfulness framework adopted by the Court offers little guidance to judges on how to apply its interpretation of FRE 702's admissibility standard. Using child custody decision making as an exemplar, the authors highlight the difficulties inherent in applying the Daubert standard to social science testimony and find no reason to assume that other topics in the behavioral and social sciences will operate differently under Daubert scrutiny. The article concludes by recommending steps that courts can take to improve the ability of judges to apply Daubert to scientific information. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Forensic psychological testimony: Is the courtroom door now locked and barred?

Beginning with the Supreme Court of Canada's decision in R v. Marquard (1993), it has become increasingly more difficult for lawyers to have proposed psychological testimony admitted into evidence at trial. By reviewing several recent cases, the author shows how courts are applying legal rules of admissibility in cases where expert psychological evidence is being proffered. Drawing on the review of case law, the author provides useful recommendations that will help psychologists ensure that—when appropriate—their testimony will be held admissible by courts. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Criteria for judging the admissibility of eyewitness testimony of long past events.

Court cases of recovered memories of childhood abuse, in which the victim's testimony may constitute the only evidence available, and a growing body of research demonstrating the inexactitude and suggestibility of autobiographical memory of long past events, are forcing courts and cognitive scientists to seek scientific, principled criteria for admissibility of such testimony. The authors use as examples 2 recent court cases. In the 1st case, a concussion produced total retrograde amnesia for an accident for a period of 3 years, and then, over a few months, the driver claimed his memory returned. In the 2nd, 2 adults reported to the police that they witnessed their sister's murder 35 years earlier, when they were 3 and 5 years old, respectively. The authors provide objective guidelines for courts to determine whether testimony about recovered or very-long-term memory for eyewitnessed events should be admissible. The principles outlined can be expanded easily to include eyewitness testimony in general. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Admissibility of repressed memory evidence by therapists in sexual abuse cases.

The surfacing of repressed memories and resultant allegations of childhood sexual abuse is analyzed in the context of the evidentiary admissibility of the proffered expert testimony by therapists. To be admissible, such expert testimony must comply with the criteria set forth by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. The literature on repression and repressed memories is reviewed in light of various therapist techniques used with clients presenting complaints of lost memory. The scientific efficacy of these suggestive techniques, and the frequently false memories of childhood sexual abuse that ensue, is cause for concern regarding their evidentiary reliability, and such testimony fails the Daubert criteria for the admissibility of expert testimony. Suggestions are made to assist judges in their evidentiary gatekeeping role. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

A final reply to Grove and Barden: The relevance of the Rorschach Comprehensive System for expert testimony.

In reply to Grove et al. (2002), the authors attempt to limit their focus on the question of admissibility of the Rorschach Comprehensive System for expert testimony under the guidelines of the U.S. Supreme Court Daubert/Kumho/Joiner decisions. The article refutes the argument that a "raging controversy" exists as evidence that the Rorschach is not accepted in the field of psychology. The authors again argue that Grove et al. have misconstrued the intent of Daubert/Kumho and misidentify nonclinician academics as the appropriate evaluators of the admissibility of the Rorschach. The authors add to their previous argument (2002) that the Rorschach has sufficient reliability, validity, and error rates to be admissible under Daubert and conclude by countering the Grove et al. argument that the Journal of Personality Assessment is not an adequate forum for peer review of the Rorschach. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Considerations for experts in assessing the credibility of recovered memories of child sexual abuse: The importance of maintaining a case-specific focus.

In this article, the authors argue that a variety of psychological factors stand in the way of providing expert advice to the courts in terms of assessing the credibility of a complainant's account of sexual abuse when there is a significant delay in reporting. These include difficulties in assessing (a) the complainant's account of how he or she claims to have remembered or forgotten the abuse, (b) whether (and how) the claim of abuse originated within a therapeutic setting, and (c) the difficulty of generalizing from empirical evidence. It is argued that all of these issues can be more easily avoided if experts maintain a case-specific focus. In this article, the authors review both the psychological and legal controversies surrounding the false-recovered memory debate, discuss how courts approach the admissibility and use of recovered memory testimony, and conclude that expert witnesses should carefully consider the above points before drawing general conclusions from the literature and applying them to individual cases. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Legal perceptions of science and expert knowledge.

In the past half century, expert testimony has played an increasingly important role in American litigation. As the volume of expert testimony has grown, so have issues surrounding its admissibility into evidence. In the past decade, a trilogy of U.S. Supreme Court cases redefined the rules governing admissibility. This article reviews these cases and examines some of the assumptions about expert knowledge implicit in the opinions. It argues that the opinions ask judges to assume the role of scientific methodologists. Together, the 3 opinions reflect what Steven Cole calls a realist-constructivist view of science. Science is socially constructed both in the laboratory and in the wider community, but the construction is constrained by input from the empirical world. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Hindsight bias, Daubert, and the silicone breast implant litigation: Making the case for court-appointed experts in complex medical and scientific litigation.

Empirical research indicates that knowledge of the outcome in a given case influences juror deliberations. This bias is compounded when the jury must evaluate complex scientific evidence. Because jurors typically lack the background necessary to evaluate such evidence, they often use hindsight as a "cognitive shortcut." "Junk science" can exacerbate this tendency by offering a "scientific" link between the injury and the product. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), properly applied, can defuse junk science testimony and mitigate its distorting effect on legal outcomes. The authors argue that judges carrying out Daubert's prerogatives should, where feasible, appoint independent experts and science panels to educate themselves and the jury, and thereby improve the likelihood that legal decisions will be based on sound scientific understanding. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Supreme Court of Canada addresses admissibility of posthypnosis witness evidence: R. v. Trochym (2007).

In February of 2007, the Supreme Court of Canada issued its ruling in R. v. Trochym, a case in which the Court addressed the admissibility of posthypnosis witness testimony. The holding by a majority of five Justices establishes a presumption of inadmissibility for posthypnosis evidence that is very unlikely to be overcome. Although not a clear bar against this form of testimony, this ruling makes it extraordinarily difficult for such testimony to be admitted in the future. The authors discuss the case, the relevant empirical literature, and implications for the Canadian psychology community, including some general recommendations for improved integration of psychology and law. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Psychological Testimony in a Courtroom.

In view of the unclear precedent concerning the admissibility of psychological test evidence in a court of law, the author reports to fellow psychologists in some detail an experience which he had in the early part of 1954 as an expert witness in a courtroom litigation. The author feels that it may be profitable to be informed of instances when a colleague is privileged to give testimony as an expert. Perhaps, in this way psychologists can collect a body of cases which will help establish legal provision for the admission of psychological test data in a courtroom. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The case for expert testimony about eyewitness memory.

Eyewitness expert testimony informs a jury about psychological processes and accuracy related variables in eyewitness testimony. Appropriately chosen testimony is not prejudicial, and it is on sound scientific ground. Eyewitness research has established reliable, applicable findings and demonstrated that jurors have insufficient knowledge of some findings and poorly judge eyewitness accuracy. Studies of trial dynamics and reactions to eyewitnesses suggest a sizable risk of inordinate eyewitness impact, creating sizable risk of conviction on the basis of mistaken identifications. Trial simulations examining eyewitness expert testimony indicate it promotes modest, appropriate increases in skepticism about eyewitnesses, even when the expert gives a general overview of research and admits to limitations. The psychological and legal professions should develop responsible guidelines for use of expert testimony in court. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Experts in court: A view from the bench.

There has been a significant increase in the frequency of expert testimony over the past 25 years in Canada. As such, there has also been an increase in psychological expert testimony. In drawing from his experience as a litigator and judge, and reflecting on the articles by A. D. Yarmey and M. Peters (see records 2001-06561-002 and 2001-06561-003, respectively), the author explains what it is that judges expect of an expert and how experts should be prepared. He also summarizes some of the legal rules concerning expert testimony. Finally, the author considers the future of expert psychological testimony. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Meeting the challenge of the "junk science" defense in domestic violence litigation.

Attorneys increasingly challenge the admissibility of expert testimony in domestic violence litigation on the ground that it is "junk science." This article discusses the standards courts apply when determining whether to admit "novel" scientific theory and methodology. It is recommended that psychologists offering testimony that may be subjected to this kind of challenge, critically evaluate the foundation for their opinions in light of the admissibility standards being applied in the pertinent jurisdiction, and that they directly address with the attorneys offering them as witnesses how best to present that foundation to the trial judge in their mutual effort to meet and overcome the junk science challenge. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The evidentiary status of social science under Daubert: Is it "scientific," "technical," or "other" knowledge?

The U.S. Supreme Court assumed the difficult task of establishing the threshold standard for the admissibility of expert testimony that is based on "scientific" knowledge in Daubert v. Merrell Dow Pharmaceuticals (113 S. Ct. 2786, 1993). Psychology confronts a significant challenge under Daubert, which calls for judges themselves to make determinations of scientific validity rather than merely looking to the pertinent scientific community for approval. Daubert identifies 4 factors lower courts can use to determine scientific validity: falsifiability, error rate, peer review and publication, and general acceptance. It is argued that expert testimony on eyewitness identification would hold up fairly well to these scientific validity factors, whereas expert testimony on repressed memories might not. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Expert psychological testimony: Assisting or misleading the trier of fact?

The consequences of psychologists' opinions are perhaps most strongly felt when offered in the context of a legal case. Due to this reality, courts are justifiably cautious when deciding whether to admit psychological testimony into evidence at trial. This commentary to the special section of Canadian Psychology on expert psychological testimony considers the circumstances under which expert psychological evidence ought to be deemed admissible. Drawing on the model of social analytic jurisprudence, guidelines are offered to psychologists for determining the propriety of their proposed testimony. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Assessment of the commonsense psychology underlying Daubert: Legal decision makers' abilities to evaluate expert evidence in hostile work environment cases.

In Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), the Supreme Court justices relied on commonsense psychological assumptions about the decision-making capabilities of judges and jurors and the effectiveness of safeguards designed to protect the jury from depending on unreliable evidence. This article reviews the empirical evidence on legal decision makers' abilities to evaluate the quality of expert evidence and the effectiveness of procedural safeguards presumed to assist judges and jurors in these evaluations in hostile work environment cases. This evidence suggests that judges, attorneys, and jurors are not particularly skilled in identifying flawed research. Although opposing experts may be able to recognize flawed research, they may be unwilling to testify or their testimony may be ineffective. Suggestions for future research and ways of improving judges' decision-making abilities are discussed. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The impact of Daubert and its progeny on the admissibility of behavioral and social science evidence.

Although Daubert (1993) describes a test for admissibility that applies to all proffers of scientific evidence in the federal courts and many state courts, its application has not been uniform across the sciences. To assess Daubert's impact for behavioral and social science evidence, the authors describe and analyze the application of a set of criteria that include whether Daubert has mattered, whether the context in which Daubert is applied should matter, whether one can operationalize the application of the Daubert criteria to predict its outcome in specific cases, whether Daubert can assist in getting admissibility decisions right, and whether there are broader lessons beyond admissibility to be learned from Daubert . (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The effects of clinical and scientific expert testimony on juror decision making in capital sentencing.

The Supreme Court and many state courts have assumed that jurors are capable of differentiating less accurate clinical opinion expert testimony from expert testimony based on more sound scientific footing and of appropriately weighing these two types of testimony in their decisions. Persuasion and jury decision-making research, however, both suggest that this assumption is dubious. The authors investigated whether mock jurors are more influenced by clinical opinion expert testimony or actuarial expert testimony. Results suggested that jurors are more influenced by clinical opinion expert testimony than by actuarial expert testimony and that this preference for clinical opinion expert testimony remains even after the presentation of adversary procedures. Limited empirical evidence was found for the notion that various types of adversary procedures will have a differential impact on the influence of expert testimony on juror decisions. (PsycINFO Database Record (c) 2010 APA, all rights reserved)