Getting off a slippery slope: Social science in the judicial process.

Discusses the implications of the Ballew v. Georgia decision for social scientists interested in having their research used by the courts. Obstacles to judicial use of social science research are reviewed, including the timing of judicial decisions, the adversary system, and judicial adherence to precedent. It is recommended that social scientists identify empirical issues in the legal process through legal publications and interest groups; consult with legal experts in carrying out research and in criticizing and summarizing research results; and present their research to the courts by publishing in legal journals, working with parties to appellate cases, filing true amicus curiae briefs, and participating as experts at the trial stage of cases. (19 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.     

“Is That Not Horrific?”—or “You Have Been Warned!” Burchell v. Bullard and Implications for English Construction Law

In recent times, the cost of litigation has emerged as a serious issue in construction law. This paper examines the approach adopted by the English Courts in the light of recent reforms to the civil justice system and important case law. Important legal decisions indicate a change in judicial attitudes to Alternative Dispute Resolution (ADR) which was previously thought to be unenforceable by reason of uncertainty until very recently. This paper looks at the development of so-called “ADR law” in the English courts and discusses policy issues behind the recent case of Burchell v. Bullard. The paper concludes that although the English Courts will not impose ADR on unwilling parties, draconian cost sanctions await those who unreasonably reject ADR before proceeding to trial. Guidance is given on the tricky legal issue of how to ascertain whether a refusal is reasonable or unreasonable by exploring recently decided cases. The in-depth examination of Burchell v. Bullard gives an insight into how the judiciary approach perplexing questions of reasonableness in cases where a verdict of “unreasonable rejection” can have catastrophic cost implications for litigants.     

Psychology and the legal process: Opinion polls as evidence.

The purpose of this paper was "to describe the actual and potential use of… polls and surveys as legal evidence and to comment on relevant legal decisions for the benefit of interested psychologists." The value of public opinion polls was indicated in change-of-venue decisions, in attitudes toward euthanasia, in determining the moral climate of a community, and in determining whether a certain statement or epithet is capable of being defamatory in the public mind in connection with evidence of libel or slander. It was pointed out that the potential uses of survey evidence in litigation are numerous, and that the courts are showing increasing acceptance of this evidence. Steps toward insuring the psychologist's acceptance as an independent expert and areas of preparation by the psychologist for court testimony are suggested. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Punished, dead or alive: Empirical perspectives on awarding punitive damages against deceased defendants.

Punitive damages are a tool for punishing defendants who engage in reckless and wanton behaviors that cause injury to others. As with criminal punishment, goals of punitive damages include retribution, specific deterrence, and general deterrence. Unlike criminal punishment, however, some courts allow punitive damages to follow the death of defendants. To explore this issue, we first conducted a legal analysis of appellate court decisions concerning punitive damages against deceased defendants. While the majority of courts suggest that punitive damages against deceased individuals are not appropriate, some argue that favorable policy implications of allowing punitive damages to follow the defendant's death merit their survivability. Next, we conducted a simulation study to investigate the effects of defendant injury severity, including death, on juror decisions in a punitive damages case. Consistent with some judicial reasoning, mock jurors' liability and damage awards were not influenced by a defendant's injury severity, but defendant death did influence participants' self-reported goals of their punitive damage awards. We conclude with a discussion of policy and research implications. (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.     

Legal research techniques: What the psychologist needs to know.

Discusses the increasing importance of legal research for psychologists, the structure of the US judicial system, and the means by which relevant legal decisions can be retrieved. The use of 3 categories of legal materials is described: primary sources on case, statutory, and administrative law; finding tools such as case digests, computerized search services, and law journals; and secondary sources such as encyclopedias, texts, and specialized law/psychology or law/mental health journals. (10 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Medical practice guidelines in malpractice litigation: an early retrospective

The role of practice guidelines in malpractice litigation has been discussed in some theoretical detail. Little information is available, however, on how courts use guidelines or on the effort of state legislatures to explicitly link guideline compliance with malpractice defenses. We review all relevant case law and legislative enactments to shed light on the influence of medical malpractice on guidelines. We also use data from a nationwide survey of malpractice attorneys to supplement our legal analysis. Although guidelines are being used for both inculpatory and exculpatory purposes in common-law litigation (a two-way street), legislatures are interested in applying them only for exculpatory purposes (a one-way street).     

The rule of law in an instant society: Implications for law and psychology.

Discusses the impact of the "instant" society of modern America (and the resulting demand in society for instant answers to complex social problems) and the apotheosis of public opinion polls on the courts, judges, and legal institutions of the US during the 1980's. It is argued that institutional attacks on judicial institutions throughout the country reflect a dangerous impatience with the rule of law. It is concluded that Americans must work to construct a safety net for civil liberties and individual freedoms that are threatened by the current emphasis on quick solutions. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Law enforcement in an urban society.

Discusses 4 conditions which affect the capability of the judicial and law enforcement systems to cope with crime and presents several recommendations that may ease the workload and mitigate the potential ineffectiveness of the legal establishment. The law explosion (i.e., the quantitative and qualitative problems associated with social conflicts that are settled by law); the malaise in criminal law (e.g., incomplete and misunderstood crime statistics and reports and the uneven distribution of resources in the legal system); organizational fragmentation within the judicial, police, and law networks; and the overload of the courts are considered to be the major problems which face legal authorities concerned with the reduction in crime. Attention is focused on the discrepancies in role expectations of the police and the various systems of control which affect police behavior. Suggested remedies include additional resources, a redistribution and reorganization of present resources, and new means of judging social crimes, possibly decriminalization. (16 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Alteration of rendering and meat hygiene legislation in the course of the BSE/TSE crisis. Validity of decisive legal provisions (1)

The decisive European legal provisions to fight bovine sponfiform encephalopathy in the context of the rendering and meat-hygiene legislation are the Commission Decisions 96/449/EC "on the approval of alternative heat treatment systems for processing animal waste with a view to the inactivation of spongiform encephalopathy agents" and 97/534/EC "on the prohibition of the use of material presenting risks as regards transmissible spongiform encephalopathies". Both decisions are based on Council Directives which do not provide the necessary authorization for these decisions by the Commission. Consequently, both have to be regarded as legally invalid. Furthermore, the legal acts to convert these decisions into German law (Rendering Plants Regulation and Meat-Hygiene Regulation) have to be considered invalid--partly due to formal and partly due to factual reasons. Because of the thus created legal uncertainty the legal provisions in question can only come fully into force after the elimination of this specifically described legal shortcomings or after clarification of the legal situation by the responsible courts.     

Assessing the legal standard for predictions of dangerousness in sex offender commitment proceedings.

Advocates and courts legitimize sex offender commitment laws by claiming the laws confine only those who are "highly likely" to engage in sexual violence. This article proposes a definition of "probability" of future harm and assesses the legal probability thresholds commitment courts actually use. Using published information about recidivism and actuarial prediction, the authors concludes that moderate, but not extravagant, claims about legal probability thresholds are supportable but only on a rather optimistic set of assumptions. The authors recommend that sex offender commitment courts use the proposed methods to quantify judicial standards and findings about prediction. This will allow the claims for legitimacy to be more readily assessed. (PsycINFO Database Record (c) 2011 APA, all rights reserved)     

Psychotherapists' legal responsibility to third parties: Does it extend to alleged perpetrators of childhood abuse?

Although psychologists generally have a legal duty only to their patients, some courts have created a duty to third parties who have been accused of child abuse. The authors review those cases and conclude that it is too soon to discern whether they represent aberrant decisions precipitated by unusual circumstances or whether they present an ominous liability trend. The authors argue that this expansion of the duty to this class of persons is contrary to the public interest. Recommendations are made to psychologists to minimize the likelihood of being sued by an aggrieved third party. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Voluntary, but Knowing and Intelligent: Comprehension in Mental Health Courts.

The number of mental health courts (MHCs) is steadily increasing. Although the courts are voluntary, it is unknown whether decisions to enter MHCs are made knowingly and intelligently. However, the ability to make these decisions is important given that MHCs are informal (and thus may lack built-in safeguards against constitutional violations) and given their rate of growth. Relevant research on other types of legal competencies suggests there may a substantial number of MHC participants who do not fully comprehend court processes and requirements. Furthermore, the level of comprehension at entry may predict future success or failure in the court. Thus, for both legal and practical reasons, the issue of MHC comprehension among its participants is critical. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Review of Judging the jury.

Reviews the book, Judging the jury by Valerie P. Hans and Neil Vidmar (1986). Judging the Jury has a primary emphasis on the jury system in the United States. As the authors point out, the judicial models of the U.S. and Canada are quite different. The Canadian system is more similar to the British tradition, while the American courts have departed from this tradition in a number of significant ways. There is a greater reliance on the jury for both civil and criminal matters in the U.S.; indeed, Canadian courts do not even allow trial by jury for less serious crimes. In general, the American model gives the jury considerably more power and discretion. The book's focus on the U.S. obviously limits its application in Canada. Given that one author is a Canadian scholar and the other has extensive experience in Canadian jury research, perhaps their next book will feature the Canadian jury system. This book provides an excellent background for social scientists interested injury research, but it will also be of interest to anyone interested in the administration of justice. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The Role of Canadian Psychologists in Conducting Fitness and Criminal Responsibility Evaluations.

Historically, only physicians, typically psychiatrists, were permitted to conduct forensic mental health evaluations for the courts. In the United States, the courts have affirmed increasing acceptance of involvement of psychologists since the 1940s. In Canada, the legal system continues to adhere to the assumption of medical dominance to a large extent. For instance, Canadian legislation requires that a physician conduct court-ordered assessments of fitness to stand trial and criminal responsibility. In this article, relevant Canadian law is compared to American law, and empirical research on the ability of psychologists to assess fitness and criminal responsibility is discussed. These legal and empirical reviews are used to generate policy recommendations regarding the qualifications of forensic examiners. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Construction Adjudication in the United Kingdom: Past, Present, and Future

Adjudication was enacted in the Housing Grants, Construction and Regeneration Act (1996) as a means of improving payment practices in the U.K. construction industry. It is a statutory right that can be invoked unilaterally at any time on a construction contract that is in writing and is a quick (28?days) and usually inexpensive alternative to arbitration or litigation covering all manner of disputes. Construction adjudication has developed from zero in 1998 to 2,000 cases in the year 2002 reducing to about 1,500 cases per annum currently. Construction adjudication produces a decision that is “temporarily binding” and will be enforced by the courts until the substantive issues in dispute are resolved by litigation, arbitration, or agreement. The principles of natural justice apply but the courts apply them pragmatically because of the statutory time scales. The adjudicator may get the decision wrong. The courts will still enforce the Decision. A dispute must exist for adjudication to be invoked. A governmental review of the Act has resulted in recommendations including extending adjudication to oral contracts.     

A meta-analysis of the association between authoritarianism and jurors' perceptions of defendant culpability.

Despite scholarly criticism, juror attitudes or individual differences might affect verdict choice in criminal trials. Authoritarianism is a face valid predictor. 20 studies exploring the authoritarianism–verdict relation were meta-analyzed to test this hypothesis. Authoritarianism measure (traditional or legal), S type, presentation medium of trial, and type of crime were examined as moderators of the effect. Results support an authoritarianism–verdict relation and the moderator effect of authoritarianism type. Legal authoritarianism correlated more strongly with verdict. S type, presentation medium, and type of crime were also significant moderators. Implications for future research, as well as for legal and judicial practice, are discussed. This evidence strengthens the case for extended voir dire procedure in criminal courts. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The meanings of shame: Implications for legal reform.

Describes and critiques the recent revival of interest in shame and shaming in various contexts, including criminal punishment such as sanctions requiring defendants to wear signs in public, or to otherwise advertise their convictions. The author takes issue with culture critics who claim that Americans have become shameless in ways that undermine important social and legal goals and warns against legal reforms based on their provocative but potentially destructive call to shame. The author argues that the culture critics tend to conflate shame, shaming, and shameful and explains why separation of these terms is crucial to meaningful discussions about whether Americans have "lost" their sense of shame or should be shamed for violating social or legal norms. The author then develops the psychological and the anthropological meanings of shame to evaluate all 3 terms, and speculates about the likely individual and social consequences of official shaming techniques. Finally, the author applies these insights to the use of shaming penalties by courts in criminal cases and concludes that American criminal courts may be ill-equipped to exploit offender or audience shame vulnerabilities in a way that makes practical or moral sense. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

From competition to complementarity. Legal issues and their clinical implications in custody

In the 1970s, the "best interests of the child" doctrine focused custody litigation away from parental competition and toward meeting each child's needs. Yet, artifacts of the parental preference doctrine remain entrenched in custody law and practice. The evolving "best interests" paradigm requires redefining "custody" as development, implementation, and adaptation of individualized plans that provide a structure for complementary parenting. This article explores this paradigm shift while providing an introduction to the realities of child custody proceedings and family law courts. The article also identifies the ways in which mental health professionals can work most effectively with the legal system for the benefit of children of divorce and separation.