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)     

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)     

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)     

Judges' mediation of settlement negotiations.

This study investigates the effects that seven variables have on the level of judges' involvement in out-of-court settlement negotiations. In a nationwide survey, 650 judges and 1,100 attorneys were asked to read a civil case. The judges indicated how strongly they would mediate the negotiation between the opposing attorneys in the case and the specific tactics they would employ. The surveyed attorneys indicated the appropriate level of judicial involvement and the specific steps they felt a judge should take. The responses from the judges (58% response rate) and attorneys (73%) reveal that five variables—judges' and attorneys' attitudes toward judicial involvement, region of the country, respondent (judge versus attorney), size of case, and trial length—affect both the judges' mediation and the attorneys' preferences for judicial mediation. Two additional variables, the trial judge (current versus a different judge) and trier of the case (judge versus jury), had no effect on the dependent measures. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Judicial Application of Daubert to Psychological Syndrome and Profile Evidence: A Research Note.

The authors present previously unreported results from a nationwide survey (N=325) of state trial judges (S. I. Gatowski et al., 2001) that was conducted pre-Kumho. The authors report how the 1993 Daubert guidelines were applied to psychological syndrome and profile evidence, and the impact of the decision on the admissibility of such evidence. They found that judges' views of and experience with psychological testimony varied widely and that most judges neither understood nor applied the more technical Daubert guidelines, such as falsifiability and error rate, when assessing psychological evidence. Overall, the findings suggest that Daubert's impact on the admissibility of psychological syndrome and profile testimony is negligible and that most judges are more comfortable with pre-Daubert standards when this type of testimony is proffered. (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)     

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)     

The gatekeeper effect: The impact of judges' admissibility decisions on the persuasiveness of expert testimony.

In a pair of mock-trial studies of a possible “gatekeeper” effect, our participants were presented with a summary of a trial that included a piece of expert scientific evidence. The judge's decision was manipulated to admit the scientific evidence, as well as the quality of the evidence and the credibility of the expert. Participants were found to be less critical of and more persuaded by expert evidence when it was presented within a trial, compared with the same evidence presented outside of a courtroom context. These findings suggest that, when judges allow expert testimony to reach the jury although the evidence is of low quality, they imbue it with undeserved credibility. Furthermore, no changes in participants' perceptions of the evidence were found if the mock jurors were explicitly informed that the judge had evaluated the evidence, suggesting that the participants assumed that judges normally review evidence before allowing it to reach the jury. In addition, implications for basic research are discussed, as the moderating effects of a gatekeeper have not previously been considered by established models of persuasion. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Expert psychological testimony in rape trials: A social-cognitive analysis.

In three studies with undergraduate subjects, we investigated juror use of group probability data (base rates) in the form of expert scientific testimony in a simulated rape trial. In Study 1 we hypothesized that juror use of such evidence would be influenced by the type and timing of the expert testimony presented. As predicted, jurors made the most use of the expert testimony when it was linked explicitly to the case under consideration and presented early in the trial. Study 2 demonstrated that the observed effects were not attributable to differences in the duration of the expert testimony or to enhanced recall and suggested that use is facilitated by concrete rather than abstract presentations of expert testimony. In Study 3 juror use of expert testimony was further examined by analyzing jury deliberations from Study 1. Results show that although juries hardly discussed the expert testimony itself, the expert testimony influenced interpretations of case facts. (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)     

Whose Shadow Is Crooked? Comment.

Comments on the article by McCloskey and Egeth (1983), which examines the arguments in favor of experimental psychologists testifying as expert witnesses. In agreement with McCloskey and Egeth, I believe that psychologists should be free to decide for themselves whether they wish to offer expert testimony on eyewitness performance. I fear, however, that we may no longer have the choice. At the same time that psychologists are reading the McCloskey and Egeth articles that are so deeply critical of experimental psychologists offering testimony as an interesting intellectual exercise, prosecuting attorneys across the land are using them for an entirely different purpose: Judges are being told that the articles are proof that the psychological testimony does not even pass the "Frye test". Even as we speak, prosecutors are using the McCloskey and Egeth article to argue that there is no general acceptance in the field. In anticipation of this prosecutorial strategy, let me suggest that despite the views of McCloskey and Egeth, there are numerous research findings that are generally accepted in our field. (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)     

Cross-racial identification testimony and what not to do about it: A comment on the cross-racial jury charge and cross-racial expert identification testimony.

This article argues against adopting cross-racial jury instructions and against allowing cross-racial identification experts to testify at criminal trials. Problems of cross-racial identification evidence are not solved by requiring trial judges to tell juries that all cross-racial identifications are suspect, when that is not necessarily the case, nor by enlisting identification experts to testify at trial that, in general, cross-racial witnesses are less credible than others. Jury instructions and expert testimony on cross-racial identification are flawed insofar as they address generalities; neither can tell a jury anything about the particular identification at issue. Problems inherent in cross-racial identifications are instead best addressed by taking measures to prevent mistaken identifications in the first place, such as improving line-up procedures. Unlike special jury instructions or experts, improved line-up procedures could enhance the reliability of the identification itself and consequently the integrity of the verdict in a criminal trial. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Believability of expert and lay witnesses: Implications for trial consultation.

Attorneys are often skeptical, with good reason, about the extent to which research findings and psychological principles may apply to the members of their jury pool. It is important for attorneys as well as psychologists who provide consultation services to have access to base-rate opinions about the consultation issues. This article reports the results of a statewide telephone survey of 488 adult residents who answered questions about the believability of expert witnesses and criminal defendants who testify. The survey questions were designed to provide "local" base-rate data about issues that arise in 3 areas of consultation work with attorneys: public perceptions of witness preparation with criminal defendants, expectations of criminal defendant demeanor, and judgments with respect to expert-witness characteristics that might be associated with being a "hired gun." Implications for psychologists who work as trial consultants and expert witnesses are discussed. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The child sex abuse syndrome: The other major issue in State of New Jersey v. Margaret Kelly Michaels.

This article focuses on expert testimony regarding the child sex abuse syndrome in the Margaret Kelly Michaels trial. It examines 3 points raised by the Michaels court: the credentials of the expert, the nature of the syndrome testimony, and the basis on which the court rejected the testimony. The Michaels court's analysis is compared with the treatment other courts have afforded these issues; the current state of the law regarding each of these points and the concerns of scientific community are addressed. Policy recommendations regarding the admission of this type of expert testimony are introduced. (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)     

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)     

Science, common sense, and the determination of mental capacity.

In 1993, when the Supreme Court decided Daubert and created the modern standard for the admissibility of scientific evidence, it almost certainly did not consider its possible effect on evidentiary hearings in probate courts even though such courts routinely admit expert testimony in will contests and guardianship hearings. Probate courts also admit testimony of lay witnesses who express their opinion as to the mental capacity of the individual in question. Yet both expert and lay witnesses are only "fact bringers" and not "fact interpreters" because the ultimate question of capacity is legal, not factual. Because the determination of legal capacity is made by the judge or jury, the role of experts in capacity trials is not fundamentally different than that of lay persons. The limited role of the expert suggests that probate courts should allow great latitude in the admission of expert testimony because the fact finders must ultimately rely on their own amorphous sense of "legal capacity." (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Psychological mediators of the effects of opposing expert testimony on juror decisions.

This study examined the effectiveness of the opposing expert safeguard against unreliable expert testimony and whether beliefs about experts as hired guns and general acceptance mediate the effect of opposing expert testimony on juror decisions. We found strong evidence that the presence, but not the content, of opposing expert testimony affected jurors’ trial judgments and that these effects were mediated by mock jurors’ beliefs about general acceptance. The presence of an opposing expert affected jurors’ ratings of the general acceptance of research investigating sexual harassment in the workplace. Jurors’ beliefs about general acceptance then affected jurors’ ratings of plaintiff expert competence and research, which affected juror ratings of the probability that the plaintiff experienced a hostile work environment. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Effects of inconsistencies in eyewitness testimony on mock-juror decision making.

In attempting to impeach an eyewitness, attorneys often highlight inconsistencies in the eyewitness's recall. This study examined the differential impact of types of inconsistent testimony on mock juror decisions. Participants viewed 1 of 4 versions of a videotaped trial in which the primary evidence against the defendant was the testimony of the eyewitness. The types of inconsistent statements given by the eyewitness in the 4 versions were manipulated: (a) consistent testimony, (b) information given on the stand but not during the pretrial investigation, (c) contradictions between on-the-stand and pretrial statements, and (d) contradictions made on the stand. Participants exposed to any form of inconsistent testimony were less likely to convict and found the defendant less culpable and the eyewitness less effective. These effects were larger for contradictions than for information given on the stand but not during pretrial investigations. (PsycINFO Database Record (c) 2010 APA, all rights reserved)