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Afterword

Brian L. Cutler

in Expert Testimony on the Psychology of Eyewitness Identification

The Afterword summarizes the book's main aims and usefulness. This book has reviewed a substantial number of factors associated with expert psychological testimony on eyewitness identification. It ... More

The Afterword summarizes the book's main aims and usefulness. This book has reviewed a substantial number of factors associated with expert psychological testimony on eyewitness identification. It has provided benchmarking information about the content of testimony and information that can be used to assist in addressing admissibility and trial issues. The book has also summarized the state of knowledge and provided directions for future research on expert testimony. The book aims to help with an understanding of contemporary research findings, both strengths and limitations, and making decisions about whether experts would be useful in specific cases.Less

The Influence of Eyewitness Expert Testimony on Jurors’ Beliefs and Judgments

Michael R. Leippe and Donna Eisenstadt

in Expert Testimony on the Psychology of Eyewitness Identification

This chapter examines the influence of eyewitness expert testimony on jurors' beliefs and judgments in trials that include eyewitnesses. Most surveys indicate that prospective jurors overly believe ... More

This chapter examines the influence of eyewitness expert testimony on jurors' beliefs and judgments in trials that include eyewitnesses. Most surveys indicate that prospective jurors overly believe confident eyewitnesses and have misconceptions about memory. Expert testimony aims to correct these shortcomings by educating jurors about the psychology of eyewitness reporting and factors that affect reports. Two dozen trial simulation experiments over thirty years, taken together, indicate that expert testimony produces modest gains in juror knowledge, which may improve sensitivity to evidence quality, but often do not. Expert testimony also tends to increase skepticism about prosecution eyewitnesses and, in turn, increase acquittals. Appropriately, skepticism is typically limited to cases involving central but questionable eyewitness evidence, and salient and memorable expert testimony. Overall, eyewitness expert testimony has limited influence. Expert testimony is identified as a form of persuasive communication, and recipient, source, message, and context factors that create obstacles to persuasion are reviewed.Less

Expert Psychology Testimony on Eyewitness Identification: Consensus Among Experts?

Harmon M. Hosch, Kevin W. Jolly, Larissa A. Schmersal, and Brooke A. Smith

in Expert Testimony on the Psychology of Eyewitness Identification

A criterion a judge uses to decide whether to admit expert psychology testimony in a court of law will be whether there is a consensus among experts as to the facts of the testimony the expert will ... More

A criterion a judge uses to decide whether to admit expert psychology testimony in a court of law will be whether there is a consensus among experts as to the facts of the testimony the expert will offer. The Frye rule and the Daubert v. Merrill Dow Pharmaceuticals case decisions are the fundamental legal precedents in these situations. Specifically, the judge must determine whether the expert's theories or methods are generally accepted within the expert's scientific community. This chapter discusses the meaning of expert consensus, the history of the court decisions that have led to this criterion, the empirical psychological literature that addresses the issue, the published critiques that qualify the results of the empirical research studies and additional criteria that lend credence to the conclusion that there is general acceptance about many factors that influence identifications.Less

Limitations of Expert Psychology Testimony on Eyewitness Identification

Heather D. Flowe, Kristin M. Finklea, and Ebbe B. Ebbesen

in Expert Testimony on the Psychology of Eyewitness Identification

This chapter examines the limitations of psychological testimony on eyewitness identification. In generalizing from laboratory research to actual cases, consideration must be given to several issues, ... More

This chapter examines the limitations of psychological testimony on eyewitness identification. In generalizing from laboratory research to actual cases, consideration must be given to several issues, including 1) the extent to which the procedures or psychological processes that instantiate variables in the laboratory occur outside of the laboratory; 2) whether the background conditions of laboratory studies are diverse enough to warrant gross application; 3) whether testifying about a given factor provides incremental validity over traditional safeguards; and 4) whether real world and laboratory eyewitnesses are comparable. The chapter also questions whether experts should include DNA exoneration cases in their testimony.Less

Expert Testimony

William Douglas Woody and Krista D. Forrest

in Understanding Police Interrogation: Confessions and Consequences

The authors start this chapter with an interview with Dr. Charles Honts, who has served as an expert witness over one hundred times, as a polygraph examiner and about false and coerced confessions. ... More

The authors start this chapter with an interview with Dr. Charles Honts, who has served as an expert witness over one hundred times, as a polygraph examiner and about false and coerced confessions. The authors discuss requirements and potential roles of expert witnesses, and then move to relevant topics about which clinical and/or experimental experts may testify. The authors then examine the legal standards and ongoing disputes about admissibility of expert testimony at trial before moving to scientific studies of the impacts of expert testimony on triers of fact. The chapter concludes with a review of experts and the totality of the circumstances.Less

The Application of International Human Rights Law to Mental Disability Law: Specific Contexts

Michael L. Perlin

in International Human Rights and Mental Disability Law: When the Silenced are Heard

This chapter examines four separate substantive issues, leading to a consideration of the intersection between international human rights law and mental disability law through varying perspectives: ... More

This chapter examines four separate substantive issues, leading to a consideration of the intersection between international human rights law and mental disability law through varying perspectives: law school education; the limits of expert testimony; the private law question of a psychotherapist’s duty to warn, and corrections law. Although these issues appear to have little in common, I conclude that the same overarching factors discussed previously and subsequently—the role of sanism and pretextuality, and the importance and promise of therapeutic jurisprudence—play a major role in any analysis of these disparate issues. Although—with the modest exception of corrections law—there has been very little scholarly literature about the intersection between international human rights law and these substantive legal questions, it is hoped that, as time goes on (and especially in light of the ratification of the CRPD), we will come more readily to see the significance of this intersection.Less

Continuity and Reform: The Egyptian Expert System in a Comparative Perspective

in The Expert Witness in Islamic Courts: Medicine and Crafts in the Service of Law

In the last quarter of the nineteenth century, Egypt began to reform its traditional legal system along the line of the civil law model, especially the French one. With this legal reform, Egypt ... More

In the last quarter of the nineteenth century, Egypt began to reform its traditional legal system along the line of the civil law model, especially the French one. With this legal reform, Egypt adopted a hierarchical and centralized system of expert witnessing that would serve the national court system in any field requiring professional expertise. This article describes expert witnessing in Egypt relative to expert systems in Europe, Israel, and the United States. It first discusses modern legal writing on the probative meaning of expert testimony and on the legal status of the expert, starting with the Ottoman Majalla, the Tanzimāt's codification of Hanafi civil law. It then shows that the European (especially the French) model of expert witnessing has exerted the greatest influence on the Egyptian system, with fiqh discourse on expert testimony playing an insignificant role in this reform process.Less

Jurors Overvalue Expert Testimony

Brian H. Bornstein and Edie Greene

in The Jury Under Fire: Myth, Controversy, and Reform

Trials are becoming increasingly complex. Much of this complexity is due to scientific or other technical evidence presented by expert witnesses, which is often hard for jurors to understand. By ... More

Trials are becoming increasingly complex. Much of this complexity is due to scientific or other technical evidence presented by expert witnesses, which is often hard for jurors to understand. By their very nature and role at trial, experts tend to be perceived as credible witnesses. Yet although expert witnesses start at a relatively high level of presumed credibility, many factors can raise or lower the impact of an expert witness’s testimony, and these factors are discussed in detail. This chapter shows that despite a widespread concern that jurors will overvalue expert testimony, empirical research indicates that this belief is yet another myth about jury behavior. In addition, some individuals deal with expert testimony better than others.Less

Conclusions and Recommendations

William Douglas Woody and Krista D. Forrest

in Understanding Police Interrogation: Confessions and Consequences

This final chapter provides an array of recommendations that address individual factors, interactions, and the totality of the circumstances. The authors recommend continuing education about ... More

This final chapter provides an array of recommendations that address individual factors, interactions, and the totality of the circumstances. The authors recommend continuing education about interviews, interrogation, and confession for police, attorneys, judges, and others. The authors then provide recommendations for these processes, including mandatory video-recording, protections for vulnerable suspects, management of investigatory biases, the elimination of deception, and other reforms as well as an endorsement of nondeceptive and nonconfrontation interrogation tactics. The authors propose a series of legal changes, including actions by courts and legislatures, greater incorporation of expert testimony, and conviction integrity units. The book closes with recommendations for scholars and a review of the totality of the circumstances of police interrogation and confession in the United States.Less

Reform

Deborah Tuerkheimer

in Flawed Convictions: "Shaken Baby Syndrome" and the Inertia of Injustice

Widespread problems of criminal justice manifest themselves in the SBS realm. This chapter concentrates on a subset of problems with particular salience for SBS prosecutions and, more broadly, for ... More

Widespread problems of criminal justice manifest themselves in the SBS realm. This chapter concentrates on a subset of problems with particular salience for SBS prosecutions and, more broadly, for science dependent prosecution. Suggested reforms discussed include allowing for pretrial discovery depositions of prosecution experts; strengthening judicial regulation of expert testimony; enhancing the effectiveness of post-conviction judicial review; creating conviction integrity units within prosecutors’ offices; and developing freestanding innocence commissions.Less

The Right Hand of Qadis: Male Experts in Judicial Practice

in The Expert Witness in Islamic Courts: Medicine and Crafts in the Service of Law

This article focuses on two specific groups of male experts for whom the richness of information is larger than for other expert witnesses: experts in the human body (and also on animal anatomy), ... More

This article focuses on two specific groups of male experts for whom the richness of information is larger than for other expert witnesses: experts in the human body (and also on animal anatomy), such as physicians, veterinarians, and slave dealers; and construction experts, such as builders and architects. Lawrence Rosen proposed a comparative paradigm of indirect political control of fact-finding in common-law systems versus direct control in civil-law ones. Drawing on this paradigm, this article discusses the qualifications required by the qadis of expert witnesses, how they were selected by the qadi, whether experts function as the advisers of the judge or as partisan witnesses, the procedural options developed by the court for using experts, and how judges address the problem of contradictory expert opinions. It shows that the use of expert testimony was common in premodern Islamic legal systems.Less

Missed Diagnosis

Deborah Tuerkheimer

in Flawed Convictions: "Shaken Baby Syndrome" and the Inertia of Injustice

Like everyone else, physicians take shortcuts when processing complex information. Unfortunately, mistakes in diagnosis often result. This chapter applies what we know about cognitive errors to ... More

Like everyone else, physicians take shortcuts when processing complex information. Unfortunately, mistakes in diagnosis often result. This chapter applies what we know about cognitive errors to better understand the likelihood that a baby who presents with one or more triad symptoms will be diagnosed with SBS. In a typical clinical setting, cognitive biases that tend to lead to errors readily present themselves. These biases raise real questions about the rigor of “differential diagnosis,” the methodology that purports to rule out causes of the triad other than shaking. Overall, sustained examination of causation evidence, the rule in civil cases, has not penetrated criminal court, where judges are faced seemingly unawares with comparable admissibility decisions yet reflexively admit the proffered expert testimony. A look at SBS cases where missed diagnoses ultimately were identified shows that we cannot rely on our adversary system of justice to forestall the conviction of innocents.Less

Educating Judges and Juries about Masculinities

Ann C. McGinley

in Masculinity at Work: Employment Discrimination through a Different Lens

Based on the social science research on implicit bias, this chapter argues that leaving judges and juries to resort to their common sense in determining the causes for human behavior in employment ... More

Based on the social science research on implicit bias, this chapter argues that leaving judges and juries to resort to their common sense in determining the causes for human behavior in employment discrimination cases is problematic. It demonstrates that jurors, judges, and lawyers bring assumptions into the courtroom, and concludes that masculinities experts can explain how a plaintiff’s mistreatment in the workplace is linked to gender, combined with race and other identity factors. It explains that expert testimony is often crucial to educate fact finders so they can appropriately draw inferences in discrimination suits. The chapter discusses the admissibility of expert testimony including social facts and social framework evidence and explains how to judge whether a particular view is reliable. It also advocates for judicial education to aid judges in deciding procedural pre-trial motions.Less

The Role of the Expert Witness

Lena Wahlberg and Christian Dahlman

in Philosophical Foundations of Evidence Law

This chapter maps out the scope of the epistemic authority of expert witnesses as interpreters and explainers of evidence and uncertainties that fall within their expertise. They argue that experts ... More

This chapter maps out the scope of the epistemic authority of expert witnesses as interpreters and explainers of evidence and uncertainties that fall within their expertise. They argue that experts should only testify about questions of fact and ought not to express their opinions on questions of law and other ultimate adjudicative issues such as the probability of a hypothesis given the evidence. Rather, experts should facilitate the factfinder’s assessment of how strongly the evidence supports the underlying hypothesis, given all the uncertainties involved. In this chapter, our focus will be on the part where the expert is replaceable (not on first-hand observations). Further, the chapter examines how this role should be understood and constrained.Less

Agents of Patriarchy in the Secluded World of Women: Females as Expert Witnesses

in The Expert Witness in Islamic Courts: Medicine and Crafts in the Service of Law

In Islam, the morality code obliges females to be segregated from unrelated males. The preference is for one female to treat another, especially if the malady or the wound is located in the intimate ... More

In Islam, the morality code obliges females to be segregated from unrelated males. The preference is for one female to treat another, especially if the malady or the wound is located in the intimate parts of the body. Male physicians are instructed by legal texts to teach women how to treat other women. This article explores the role of knowledgeable women in general, and midwives in particular, as providers of expert testimony concerning the intimate parts of the female body. These women testified on such issues as the menstrual cycle, pregnancy, birth, virginity, defects of the sex organs, and the identity of newborn infants and their physical condition. The article considers the physical inspections conducted by female experts and argues that they represented the interests of the patriarchy by supplying information and advice that were essential for maintaining the dominant male-oriented social and moral order. The article concludes by assessing the relationship between the legal status of women as expert witnesses and their social status in patriarchal societies.Less

Evidence and the Criminal Terrorist Prosecution

Wadie E. Said

in Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions

This chapter considers the evidence used to prove terrorism charges, with an initial look at evidence-gathering techniques, whether via eavesdropping under the Foreign Intelligence Surveillance Act ... More

This chapter considers the evidence used to prove terrorism charges, with an initial look at evidence-gathering techniques, whether via eavesdropping under the Foreign Intelligence Surveillance Act (FISA) or through custodial interrogation. It then analyzes trends in the introduction of evidence within the courtroom. The government's wide construction of terrorism and association comes squarely into view, as courts in the main have allowed highly prejudicial and arguably irrelevant images, videos, and testimony that seek to link a defendant with terrorism-and wherever possible, al-Qaeda-without an adequate assessment of the evidence's probative value. Finally, this chapter concludes with a discussion of the individuals the government has employed as expert witnesses and finds a startlingly pronounced lack of qualifications and jumbled methodologies that courts have ignored in allowing those individuals to testify in an expert capacity.Less

Managing Uncertainty in Forensic and Expert Evidence Cases

Carolyn Hoyle and Mai Sato

in Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission

This chapter examines issues arising from cases that turn on forensic and expert evidence, focusing on how the Criminal Cases Review Commission investigates such applications and makes its decisions. ... More

This chapter examines issues arising from cases that turn on forensic and expert evidence, focusing on how the Criminal Cases Review Commission investigates such applications and makes its decisions. Drawing on a sample of sixty-one cases involving forty-two applicants, the chapter shows how the Commission makes decisions in cases that ‘turn on’ forensic science and expert testimony. It also considers the influence of developments in the ‘surround’ of the Commission and how the surround affects the Commission's decision field — the broad setting within which decision-making at the Commission takes place. Finally, it analyses the role of decision frames in the Commission's decision-making on forensic and expert evidence cases, noting that such frames are characterised by uncertainty and even anxiety. Concerns about the interpretation and presentation of forensic evidence at trial are discussed, along with the legal and narrative frames of decision-making in forensic and expert evidence cases.Less