The admissibility of expert psychological and psychiatric testimony (original) (raw)
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Psychiatrists and the Parameters of Expert Testimony
A provocative paper by Faust and Ziskin (1988a) questioned whether psychiatry and professional psychology had any credible role in offering expert testimony. They concluded that psychological assessment, diagnosis, and clinical judgment (see also Ziskin & Faust, 1988) were of insufficient quality and should not be allowed as expert evidence. A vigorous, and at times acrimonious , debate ensued (e.g., Brodsky, 1989; Faust & Ziskin, 1988b; Matarrazzo, 1990, 1991; Ziskin & Faust, 1991). We do not intend to enter this foray. Rather, we believe that a common ground could possibly be achieved by addressing two questions that undergird this controversy. First, how do mental health experts express their confidence/uncertainty regarding their clinical data and conclusions? Second, what effect do expressions or confidence/uncer-tainty have on juror perceptions? Indeed, the simmering controversy might subside, if it could be demonstrated that either (a) experts accurately stated their level of confidence in their opinions, or (b) prospective jurors were uninfluenced by overstated opinions. The effects on judges and juries of how expert testimony is presented has gone largely unnoticed in the professional literature. One notable exception has been the barrage of criticism levied at mental health experts for their overreaching testimony in insanity trials (e.. A particularly contentious issue is whether conclu-sory opinions on the matter of insanity "invade the province of the jury" by unduly influencing jurors' perceptions and subsequent verdict. The "undue influence" argument was raised in the aftermath of the M'Naghten trial (Brooks, 1974) and has periodically resurfaced (Goldstein, 1967; Halleck,
Psychological expert witness testimony and judicial decision making trends
International Journal of Law and Psychiatry, 2015
Despite the establishment of the Daubert standard in 1993, the evidentiary criteria are rarely used as a basis for admissibility of expert witness testimony in the behavioral sciences. Ever since the promulgation of Frye and the Federal Rules of Evidence, controversy has surrounded the admissibility of expert testimony in courtrooms. There appears to be no existing uniform application of standards governing the admissibility of psychological expert witness testimony. Therefore, it is essential for the psycho-legal communities to explore judicial decisionmaking trends regarding psychological expert witness evidence. In this current research, psychological expert witness testimony and judicial decision-making will be explored. In preliminary examination, 97 criminal and civil case summaries from the LexisNexis Academic Database involved issues of admissibility. Analyses conducted by eight trained and paired coders revealed that reliability and assistance to the trier of fact were the most often cited reasons for admissibility in courts. Consistent with prior studies, it was also found that the most applied standards for admissibility of psychological evidence were the Federal Rules of Evidence. Interestingly, while the Daubert scientific criteria for admission of scientific testimony were mentioned, they were rarely utilized. A secondary analysis of 167 civil and criminal appellate cases indicated that the reliability of testimony (18% of all cases), ability to assist the trier of fact (17%), the expert witness' qualifications (17%), and the relevance of the testimony (16%) were the most commonly cited reasons for determining admissibility. A tertiary qualitative analysis focusing on these four categories then revealed eight major trends in admissibility of psychological expert evidence.
THE PSYCHOLOGIST AS EXPERT WITNESS IN COURT: A COMPARATIVE APPROACH
International Review of Law and Jurisprudence, 1(3) (2019)
The earliest description of the role of expert evidence in common law courts is to be found in the case of Buckley v Rice Thomas . Experts in the form of medical doctors appear to have first been called upon to advise judges at the Old Bailey 600 years ago, but it was not until around 1620 that a jury was furnished with expert testimony for the first time. By 1721, there was the first challenge to an expert witness (a surgeon) testifying for the prosecution by another expert testifying on behalf of the defendant . However, it was not until the later part of the 18th century that the role of expert witness was finally shaped, as counsel came to participate more and more in questioning and cross-examining expert witnesses. This study concentrates on the role of the psychologist as expert witness given the impact of psychology on human behaviour.
The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (‘cherry picking’ evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context - in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial de...
Journal of Investigative Psychology and Offender Profiling, 2009
The question of how courts assess expert evidence—especially when mental disability is an issue—raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (‘cherry picking’ evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context—in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial decision making in both the common law and civil law. Finally, we speculate as to whether the new United Nations Convention on the Rights of Persons with Disabilities is likely to have any impact on practices in this area. Copyright © 2009 John Wiley & Sons, Ltd.
Psychological evidence in Court: Legal developments in England and The United States
Psychology, Crime & Law, 1994
Psychological testimony in England, except when it has dealt with clinical matters, has generally been ruled inadmissible on the grounds that it would usurp the function of the jury to decide matters of "common knowledge and experience". The so-called Turner rule governing admissibility of psychological evidence has been interpreted according to a dubious assumption about the transparency of human behaviour, but this restrictive interpretation was rejected in a recent Court of Appeal decision, which should result in a more receptive attitude to psychological evidence.
The Bulletin of the American Academy of Psychiatry and the Law, 1992
In an article in the journal Science, Faust and Ziskin have asserted that the testimony of psychologists and psychiatrists cannot "meet legal standards for expertise" for purposes of trial evidence. ' This assertion, given visibility and credence by a journal of the stature of Science, understandably has raised concern among forensic mental health profess i o n a l~.~ Attorneys have begun to use Faust and Ziskin's arguments to attack mental health professionals' testimony. Moreover, many attorneys and judges who must evaluate these assertions may not have an adequate frame of reference for evaluating Faust and Ziskin's arguments. These concerns are augmented by the nature and quality of Faust and Ziskin's accusations which, by our analysis, are largely unwarranted and misleading. The mental health professions should not seek to minimize the existence of limitations and valid complaints that may be made against psychological and psychiatric evidence. Faust and Ziskin's article, however, makes no contribution to our understanding of those issues. Moreover, the charges leveled by Faust and Ziskin are serious ones, and the status of psychiatrists and psychologists