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)     

Eyewitness persuasion: How and how well do fact finders judge the accuracy of adults' and children's memory reports?

Children (aged 5–6 and 9–10 yrs) and adults participated in an eventful laboratory session and provided memory reports of the session. In 3 experiments, college students and parents viewed videotapes of highly accurate and highly inaccurate reports. In 2 experiments, these "fact finders" rated adult witnesses more believable and accurate than younger child witnesses, even when both groups were equally accurate. Perceptions of confidence and consistency mediated credibility judgments. Accurate witnesses were judged more believable and accurate than inaccurate witnesses. Higher perceived confidence, longer free recall, and fewer memory failure admissions were associated with more accurate adult memory reports. Fact finders overused confidence and underused the other cues in achieving modest accuracy discernment. The results suggest how strong and weak memory reports differ and how fact finders may learn to differentiate them. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The expert witness, the adversary system, and the voice of reason: Reconciling impartiality and advocacy.

The legal system and the profession of psychology have differing expectations that cause psychologists who serve as expert witnesses to face fundamental conflicts. The rules of evidence demand that experts assist the trier of fact, the adversary system demands that experts serve the parties who retain them, and the ethical codes and guidelines demand that experts impartially assist the court, only in their area of competence. Psychological experts are left to sort out the competing demands, as well as their potential liability, while recognizing the importance of being persuasive. This article addresses the competing tensions expert witnesses face and offers an approach to reconciling these tensions that relies on competence, relevance, perspective, balance, and candor. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Daubert v. Merrell Dow and expert testimony by clinical psychologists: Implications and recommendations for practice.

The role and practice of clinical psychologists as expert witnesses is discussed in light of the United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals (1993). Daubert v. Merrell Dow is reviewed, and its implications for clinicians who testify as expert witnesses are presented. A distinction is made between expert testimony in a generic sense, and scientific expert testimony. By virtue of clinical psychology's adoption of the mantle of science, clinical psychologists should adhere to scientific standards of data gathering in order to qualify as scientific experts. Guidelines are provided to assist clinicians in assessing the confidence with which conclusions can be termed scientific, and ethical concerns are reviewed. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Magnetic field changes in the human brain due to swallowing or speaking

Urologists enjoying the protection of the law owe a duty to participate in the legal system as expert witnesses. Forensic education has been neglected by clinical educators. Qualification of experts includes forensic as well as clinical competence. The forensic urologist must know legal concepts and language; the powers, duties, and role of courtroom experts. The expert witness' role is to factually enlighten the judges, not to persuade them. Practical measures to remedy the current state of affairs are described from over a decade of experience. These practical measures should be supplemented by the formal development of a subspecialty of Forensic Urology sponsored by our colleges and professional societies.     

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)     

Children, psychiatrists and the courts: understanding the ambivalence of the legal profession. Part 1--General principles

Psychiatrists and other mental health professionals are frequently involved as expert witnesses in court proceedings related to children and adolescents. Their testimony may be based on a therapeutic relationship, but frequently arises because of an assessment conducted specifically for the court process. This two part paper discusses some of the issues that arise when child psychiatrists are involved as expert witnesses in litigation, with specific focus on their role in child custody, sexual abuse and young offender cases. It also offers some practical advice for those who may be called as witnesses. There is controversy in the legal profession about the role of mental health professionals in the court process. While there is recognition of their expertise, there is also a concern about not wanting to have experts usurp the role of the courts. Legal professionals also question the "objectivity" of experts, and the reliability of their opinions. Frequently the opinions of psychiatrists about children and adolescents involved in litigation have inherently speculative and value based dimensions, and not "scientific". Participation in the court process by mental health experts is nevertheless a vitally important role, providing information, analysis and recommendations about what are often very difficult societal decisions. Part two of this paper starts on page 531.     

Eyewitness identification: What can a psychologist tell a jury?

Examines the arguments in favor of experimental psychologists testifying as expert witnesses in cases involving eyewitnesses to inform the jury about problems with eyewitness testimony. Rationales for such use are (1) the assertion the jurors cannot discriminate between accurate and inaccurate witnesses, and (2) the assumption that jurors are too willing to believe eyewitness testimony. The present authors point out that known cases of erroneous conviction due to juror overbelief fail to establish that the frequency is unacceptably high. Other studies indicate that jurors are able to take into account at least some factors that influence witness testimony. Contrary to claims made recently by psychologists and lawyers, it is by no means clear that expert psychological testimony about eyewitnesses would improve jurors' ability to evaluate eyewitness testimony. In fact, it is even possible that this sort of expert testimony would have detrimental effects. A hypothetical example of a prosecutor examining a defense psychologist is presented. (34 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

A time to speak, or a time to keep silence?

Responds to E. F. Loftus's (see record 1984-06608-001) comments on M. McCloskey and H. E. Egeth's (see record 1984-06612-001) previous article in which the authors argue against psychologists testifying in court as expert witnesses on the validity of eyewitness testimony. Loftus presents documented cases of convictions of innocent people based on faulty eyewitness accounts, and she argues that expert testimony by psychologists could correct misconceptions jurors may hold. The present authors answer Loftus's criticisms and contrast their views with hers in the areas of empirical support for conclusive statements, perspectives on interventions, and focus on innocence. (10 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The war against junk science: the use of expert panels in complex medical-legal scientific litigation

In the legal context, junk science is defined as evidence that is outside of mainstream scientific or medical views. Junk science does not have indicia of reliability and is not generally accepted. Despite the lack of scientific reliability, US courts, expert witnesses and juries are increasingly reliant on junk science in making causation decisions in complex medical liability cases. Courts have accepted junk science even where reliable scientific evidence is available. The United States silicone gel breast implant litigation is a prime example of this phenomenon. The issue of whether silicone breast implants are associated with disease has been a controversial subject for scientists and physicians, an emotional issue for women who have breast implants, and a lucrative business for the lawyers and expert witnesses who are the proponents of junk science. Junk science has provided to juries a quick and convenient explanation for claimed diseases or syndromes which have required years for reliable scientists to conclude are not related to breast implants. The breast implant litigation highlights the often dramatic difference between decisions based upon junk science and decisions grounded in scientific method, fact and reality. Recently, judges involved in the breast implant litigation have become concerned about the use of junk science in light of the growing body of legitimate scientific evidence that breast implants do not cause disease. Several judges have been motivated to take the unique and novel approach of convening scientific panels of independent experts to study the scientific issues and make findings to the court. Through the use of independent scientific experts, several judges have meaningfully assessed the evidence that the litigants present and have prevented or strictly limited the use of junk science in the courtroom. Using this procedure, other judges are weighing the evidence for future cases. This paper will briefly explore the background of mass tort medical products litigation and the development of junk science. The paper will then focus on the history of the breast implant litigation and the steps that the courts have already taken to combat junk science, including the use of scientific panels.     

The Relationship Between Expertise and Evaluative Extremity: The Moderating Role of Experts' Task Characteristics.

Past research has yielded contradictory results with regard to the relationship between expertise and evaluative extremity. The authors suggest that this apparent contradiction is due to the task characteristics of the expert activity. The primary task of certain experts is to formulate overall (configural) judgments and to generate clear, unambiguous answers. These experts tend to give relatively extreme evaluations. Other experts generally communicate the implications of the different choice alternatives and explain featural aspects of the stimuli. These experts are characterized by relatively moderate evaluations. The research reported in this article shows that experts whose expert activity involves configural judgments tend to make more extreme evaluations than experts who generally provide others with featural explanations. It also demonstrates that experts' task characteristics affect the way they store stimulus-relevant attributes in memory. (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)     

Sexual abuse victimization and the child witness in Canada: Legal, ethical, and professional issues for psychologists.

The Canadian legal system has made a number of significant reforms in the last few decades regarding the rights of child witnesses and, in particular, the rights of those who have disclosed sexual abuse. This paper provides an overview of the law in Canada as it pertains to child sexual abuse victims and witnesses, and reflects on the role and responsibilities of psychologists who work with child witnesses. It reviews the effects of protection reforms and preparation programs on children who must testify, examines some of the current major issues in the research literature in the area of interviewing and assessing sexually abused children, and considers the role of the psychologists as expert witness in court. In addition, it discusses potential ethical dilemmas for psychologists who work with child witnesses, and proposes recommendations for research and clinical practice. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The Kitty Genovese murder and the social psychology of helping: The parable of the 38 witnesses.

This article argues that an iconic event in the history of helping research--the story of the 38 witnesses who remained inactive during the murder of Kitty Genovese--is not supported by the available evidence. Using archive material, the authors show that there is no evidence for the presence of 38 witnesses, or that witnesses observed the murder, or that witnesses remained inactive. Drawing a distinction between the robust bystander research tradition and the story of the 38 witnesses, the authors explore the consequences of the story for the discipline of psychology. They argue that the story itself plays a key role in psychology textbooks. They also suggest that the story marks a new way of conceptualizing the dangers of immersion in social groups. Finally, they suggest that the story itself has become a modern parable, the telling of which has served to limit the scope of inquiry into emergency helping. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Suppression of the degradation of adenine nucleotides during ischemia may not be a sufficient mechanism for infarct size limitation by preconditioning

OBJECTIVES: Exposure to pesticides in fruit growing was estimated by pesticide experts, occupational hygienists, and fruit growing experts to determine whether valid subjective assessments can be made by experts. The study objectives were (i) validation of exposure assessment by experts using different sources of information, (ii) assessment of interrater agreement, (iii) measurement of agreement between experts' assessments and actual quantitative exposure data. METHODS: Three groups with different expertise made four ratings. Three of the ratings were made in three phases in which exposure information was provided. RESULTS: The intraclass correlation was high for each subgroup of experts when tasks in fruit growing were relatively ranked by increasing exposure level. In general, the interrater agreement on factors influencing the internal dose decreased when more information on exposure was provided. Experts correctly considered dermal exposure as the prominent contributor to internal dose. Results were comparable for the three pesticides under study. The ranking of 15 specific sprayings with a fungicide clearly showed differences between raters according to their expertise. The pesticide experts and occupational hygienists were able to rank daily exposure levels during pesticide spraying in a meaningful way. CONCLUSIONS: Experts seem to recognize the most important determinants of external exposure and therefore should be able pay a role in evaluating the effectiveness of control measures taken to reduce external exposure and to determine exposure groups in epidemiologic studies. The expert panel should not be too small, and consensus or average estimates should be used because differences within expert groups can be considerable.     

On being ethical in legal places.

Comments that many ethical pitfalls may await psychologists who participate as expert witnesses in the legal process. This article describes the ethical problems and examines their origin in light of important differences in purpose between psychological practice and legal process. Special attention is given to problems of objectivity in the assessment process, ethical issues in the interpretation of data in the courtroom, and the client's psychological welfare. Suggestions for maintaining ethical practice in the role of expert witness are provided. (29 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Trading forensic and family commitments

This pilot study explores the balancing of conflicting family and forensic commitments among forensic experts. Drawing upon consumer preference theory and behavioral economics, the authors devised an instrument to elicit choices between upholding family commitments and professional commitments. The instrument was administered to 15 forensic experts, and the data were used to construct trading functions for each individual. These functions were examined to reveal the decision-making process behind balancing conflicting sets of commitments. The study also examined the relationship between the trading functions and each participant's attitude toward the role of the expert witness, as well as some personal characteristics.     

Expert judgment: Some necessary conditions and an example.

Studied characteristics of expertise in situations where judges deal with multidimensional information. Psychometric criteria were advocated as being indicative of expert judgment: (a) Experts should tend to cluster variables in the same way when identifying and organizing cues; (b) expert judgment should be highly reliable (intrajudge reliability), show both convergent and discriminant validity, and be relatively free of judgmental bias when measuring cues; and (c) experts should weight and combine information in similar ways. These criteria were applied to data obtained when 3 medical pathologists rated the amount of histological signs in biopsy slides. Results show that these experts generally met the criteria, although they did not seem to weigh information similarly. (20 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)