TitleSlideTop.jpg TitleSlideBottom.jpg The Excitement of Expert Testimony! Dee Anand RunningTop-R.jpg Aims nWhat is the role of the expert? nWhere does the duty of the expert lie? nWhat can we comment on? nWhat if we disagree with another expert? nWhat is the ethical responsibility of the expert? nPractical tips – what if we do not know/ cannot answer/ do not wish to answer? n RunningTop-R.jpg What do the courts want? nCourt wants facts not opinions nTrial by judge and jury nJudge and jury infer from facts nException to this = Expert Testimony nHere the role of the expert is to provide an opinion as topic is beyond Court’s knowledge nThis exception to the rule is the foundation for expert testimony RunningTop-R.jpg What do they want? - Civil and Criminal Courts nTrial by Judge/ Jury not by experts: nJury swayed by Poor Science? e.g. Cot Death/ Prof. Sir Roy Meadows nInfluenced by Expert’s Reputation nTrial by best science or by luck of expert chosen nRole of expert in cases being brought before Court - esp. Civil Procedures RunningTop-R.jpg Role of the expert: nPresenting evidence - subjective opinion vs. factual evidence - e.g. extent of psychological disorder/ dangerousness vs. X-Ray of broken limb n‘Factual Information’ means less questioning about subjective interpretation nExpert should educate the Court, explain fact and theory and application to the case nExpert should ‘assist’ the Court nExperts should remember to KISS! n RunningTop-R.jpg Kiss! nKeep n nIt n nSimple n nStupid! RunningTop-R.jpg The expert in the dock nLawyers choose appropriate experts nCan be chosen on reputation and persuasiveness nJudge and Jury can accept or reject evidence based on the persuasiveness of the expert nExpert must be an authority on the topic RunningTop-R.jpg Experts and the law (1) nExpert evidence: testimony, including opinions of someone with special skills or experience. nExpert Witness: brought in to give opinion nProfessional Witness: someone who works with litigant and has continuing responsibility - e.g. forensic psychologist RunningTop-R.jpg Experts and the law (2) nOpinion admissible: - if from specialised source - disputes about relevant discipline, e.g. psychiatrist vs. psychologist in dim. resp. or dangerousness n - on topics beyond the knowledge and/or experience of the judge and jury n n- Not on ultimate issue n RunningTop-R.jpg Experts and the law (3) n‘… the courts adopt a notably liberal and flexible approach to the issue of expert competence/ qualification, which adds little if anything to the basic test of relevance, and operates in practice to facilitate the reception of most expert evidence’ (Roberts, P. and Zuckerman, A, (2004). Criminal Evidence, p.308) n nJudge and Jury entitled and expected to use commonsense approach and own experience. nDo not need to be told how the ordinary person not suffering from mental illness reacts to the stresses and strains of everyday life. RunningTop-R.jpg Examples of Expert Input nCase study exercise and introduction to functional analysis nA, B, C model nSORC framework nPay attention to factors which influence risk nPay attention to offence related and offence supporting variables nConsider consequences beyond victims n RunningTop-R.jpg SORC Framework (after Lee- Evans, 1994) nSituational variables (settings and trigger events) nOrganism variables (physiological factors, behavioural skills, cognitive skills, beliefs, needs, values) nResponse variables (frequency, intensity, duration, relationship to other behaviours, ‘organism’ aspects during the chain of events ) nConsequent stimuli (immediacy, probability) n nNB Antecedents, Behaviour, Consequences (ABC) n RunningTop-R.jpg Some quotes •“ Functional analysis constitutes not a psychological theory but a strategy for problem solving, and as such may be adopted whatever the problem under discussion” (Owens & Ashcroft, 1982, p188) n n“Functional analyses do not attempt to completely explain behaviour, rather, they simply assist the assessor to develop hypotheses as to what controllable factors are at work” (Westrup, 1998 p.280) n RunningTop-R.jpg Experts and the law (4) nExperts should not give opinion on ultimate issue - that is for the court to decide e.g. describe abnormality of mind w/o stating ‘he had no mental responsibility’ nProblems: reliability of expert evidence n Is it scientific? n is it ‘junk’ science n is it recognised scientifically? n specialised literature, general acceptance nVerification of data/ other experts validation n RunningTop-R.jpg Experts and the law (5) nLaw operates in dichotomies nPsychology operates in probability or degrees of relativity nEpistemological conflict nExperts independent but can be instructed by either/ all parties nWho is paying? Who sees report? To whom is your highest duty? RunningTop-R.jpg Case law and the expert (1) nR v Bowman (CA) [2006] EWCA Crim 417. Duties of expert witnesses: n(1) The duties of an expert witness in a criminal trial, whether instructed by the prosecution or defence, are those set out in R v Harris… Any developments in scientific thinking and techniques should not be kept from the court, simply because they remain at a stage of a hypothesis. Obviously, it is of the first importance that the true status of the expert’s evidence is frankly indicated to the court… If this guidance is bornein mind and the directions are made clear and adhered to, it ought to be possible to narrow the areas of dispute before trial and limit the volume of expert evidence that the jury will have to consider….. RunningTop-R.jpg Case law and the expert (2) nR v Bowman (CA) [2006] EWCA Crim 417. Duties of expert witnesses: n(i) Expert evidence presented to the court should be and be seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. n(ii) An expert witness should provide independent assitance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness should never assume the role of advocate. n(iii) An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts that might detract from his concluded opinions. RunningTop-R.jpg Case law and the expert (3) nR v Bowman (CA) [2006] EWCA Crim 417. Duties of expert witnesses: n n(iv) An expert should make it clear when a particular question or issue falls outside his expertise. n(v) If an expert’s opinion is not properly researched because he considers that insufficient data is available then this must be stated with an indication that the opinion is no more than a provisional one. n(vi) If, after exchange of reports, an expert witness changes his view on material matters, such change of view should be communicated to the other side without delay and when appropriate to the court. RunningTop-R.jpg Case law and the expert (4) nR v Bowman (CA) [2006] EWCA Crim 417. Duties of expert witnesses: n‘It is emphasised that these duties are owed to the court and override any obligation to the person from whom the expert has received instructions, or by whom the expert is paid. Experts should maintain professional objectivity and impartiality at all times.’ RunningTop-R.jpg Courtroom drama! n Some practical tips for going to court… RunningTop-R.jpg Courtroom drama (2) nUsually called to be questioned about your report nMake your report good! nBe familiar with your conclusions nRemind yourself about the case nReview Case papers nBe aware of any developments since your report RunningTop-R.jpg Courtroom drama (3) nFamiliarise yourself with the formal setting and procedures nDress appropriately nBe ready to swear oath/ affirm - judge acoustics nTalk to the judge/ jury n3 phases of evidence: examination in chief, cross-examination, re-examination RunningTop-R.jpg Tricky Barristers nUnsettling - e.g. light/ voice projection nEsoteric Questioning - designed to fluster e.g. ‘what is reliability?’ nJumping - giving evidence in an unpredictable order nInterrupting - interrupting before qualification: counter-strategy = qualify before definitive answer nHypothetical Questioning -e.g. Royal Society and IQ nPrefatory Remark - statement before a question implying agreement or concession to the statement - disagree first! RunningTop-R.jpg And Finally nEnjoy it! n nThis is your moment! n n