The Role of the Expert Witness

Daniel T Wilcox Wilcox Psychological Associates Ltd, UK

University of Nottingham, School of Medicine (Division of Psychiatry), UKCentre for Forensic and Criminological Psychology, University of Birmingham, UK

&Leam A Craig

Forensic Psychology Practice Ltd, UKCentre for Forensic and Criminological Psychology, University of Birmingham, UK

School of Social Sciences, Birmingham City University, UK

Chapter 16 in: Forensic Psychology: Crime, Justice, Law Interventions (3rd Edition)

(Graham Davies and Anthony Beech)

Introduction

In the field of forensic psychology, an expert witness may undertake several different roles, including:

• Evaluation of the mental status of a client

• Assessment of openness, attachment, cognitive abilities, and capacity of a client

• Assessment of specific areas such as anger/violence, substance misuse, and child abuse potential

Outline of Chapter

• Who should take instruction as an expert witness?

• What is expected of an expert witness?

• The Standard of Proof

• Providing an expert opinion

• Giving oral evidence

Taking Instruction as an Expert WitnessThe Legal Guidance defines an expert as “A person whose

evidence is intended to be tendered before a Court and who has relevant skill or knowledge achieved through research,

experience or professional application within a specific field sufficient to entitle them to give evidence of their opinion and

upon which the Court may require independent, impartial assistance”

1. Ordinary Witness: Someone who reports on facts (what they have seen or heard) and may not provide an opinion

2. Professional Witness: A formal employee of a party in the case (e.g. Prison employed psychologist giving evidence on inmate risk)

3. Independent Expert Witness: Someone who provides expert evidence in an area of specialist knowledge

Types of Witnesses

What is Expected of an Expert Witness?

The expert Forensic Psychologist has a duty to the Court to:• Provide an objective and comprehensive assessment

• Act independently and not be influenced by the party who instructed them

• Offer an impartial opinion based on specialist training

Content and ProcessAn expert witness is expected to be familiar with:

• Content: Having the appropriate qualifications and experience

• Process: The act of providing written/oral evidence in a legal forum

• The relevant legislation depending on the case at hand (e.g. Mental Health Act (MHA, 2007), Mental Capacity Act (MCA, 2005) Criminal Justice Act (CJA) 2003)

Fitness to Plead

• Guidelines for addressing a defendant’s fitness to plead is determined in accordance with tests laid down in common law, and decided by a Judge.

• The Criminal Procedure Act (1964; 1991), refers to a; "disability such that it would constitute a bar to his being tried.”

• In England and Wales a defendant is unfit to plead if he is unable to either:– comprehend the course of proceedings as to make a

proper defence,– know that he may challenge jurors to whom he objects– comprehend the evidence, or– give proper instruction to his legal representative

Fitness to Plead

Where a defendant is unfit to plead the Court may make one of the following orders:1. Admission Order to Hospital: Equivalent to a hospital

order with or without restriction. Restrictions may only be given by the Crown Court where there is a risk of reoffending and potential of harm to the public.

2. Guardianship order: Not a detaining section, but is used where guardianship is warranted for the welfare of the individual or due to the nature of a mental disorder.

3. Supervision and Treatment Order: Order to be under the supervision of a probation officer or social worker for no more than two years, and may include a requirement to engage in treatment.

4. Absolute Discharge: Where the offence is trivial and there is no requirement of treatment or community supervision.

Evidence on Clinical Factors

Whenever instructed, an expert witness may be obliged to attend a legal forum to address areas upon which they have provided written testimony. The expert is expected to be able to provide:

– a clinical profile of the individual assessed– advice as to whether other experts should be instructed– specialist knowledge and experience to assist all parties in

making responsible and well-informed decisions, rather than attempting to determine issues of fact

– evidence consistent with literature and psychological theory, and grounded in evidence based practice

– opinions as to the client’s fitness to plead, mental capacity, emotional factors impacting the client, and specific mental conditions

– Information to the Court on general psychological processes

• In some cases where there is a question regarding the admissibility of specific evidence, the defence may call on a “Voir Dire”, which is a hearing that takes place in the absence of the jury in order to determine issues relevant to the admissibility of disputed evidence.

• The accepted standard of scientific evidence admissible in Court (Daubert Standard 1993) outlines that techniques and theories used must be up to date, empirically validated, and have demonstrable psychometric properties.

• An expert witness must not render an opinion that cannot be supported by scientific data.

Evidence on Clinical Factors

• Court rulings in civil proceedings (e.g. care and family) are made on the basis of “balance of probability”. “Findings of Fact” are made based on a concluding formal judgment by the Judge on issues relevant to the case. Here, it is possible to make a judgment that one scenario is more likely to have happened than another.

• Court rulings in criminal proceedings are more stringent, and use the standard of “beyond reasonable doubt” when making a determination of guilt. Here, the level of certainty required to make a determination is much greater.

• It is possible for an individual to be found ‘not guilty’ in a criminal proceeding, but held legally responsible in a civil Court for the same crime (e.g. case of OJ Simpson).

The Standard of Proof

In providing either an oral or written opinion, an expert witness Forensic Psychologist must be able to:

• Acknowledge issues that are outside their area of competence

• State their level of confidence in the opinion provided

• Report upon aspects of another expert’s assessment that are within their range of expertise

Providing an Expert Opinion

Before giving evidence at Court a Forensic Psychologist should:

• Take account of all relevant information, including new information, up to the point of being questioned in Court

• Be prepared to revise opinions before the Court in light of new information

• Be familiar with the Court (i.e. the level and type of proceeding) and address the Court accordingly

It is helpful to confirm the name of the Judge and the appropriate title to be used prior to entering the courtroom

Giving Oral Evidence at Court

1. Examination in chief– Expert called by the instructing counsel

– “Oral testimony” stage

2. Cross Examination– Led by the counsel representing other parties

– Counsel may challenge expert’s evidence or opinion

3. Re-examination– Led by instructing counsel

– Clarification of evidence

4. Conclusion– At this point the Judge may choose to ask further

questions before releasing the expert from proceedings

Stages of Giving Oral Evidence

• Questions should be viewed as being raised by the Judge, and responses should be addressed to the Judge

• Refrain from informal discussion with other professionals involved

• Confirm whether any further documents have been filed

• Have a thorough understanding of measures used –psychometric principles are often raised as points of contention

• Be wary of leading questions, pressure from counsel, or attempts to unsettle the expert

• Project confidence and composure

• Maintain an open stance and even eye contact when addressing the Judge

Helpful Points when Giving Oral Evidence

• Forensic Psychologists can have expertise in a number of different areas in relation to forensic settings (e.g. clinical, educational, developmental, social)

• Forensic Psychologists may be asked to provide opinions on a number of issues (e.g. capacity, mental disorder, risk)

• An expert witness has an overriding duty to the Court to remain objective, unbiased, and within their expertise

• An expert witness must be familiar with Content and Processand have knowledge of relevant legislation

• A competent expert witness should be able to:– Identify and address the main issues relevant to the case

– Explain complex issues to the Court in a concise and thorough manner

– Deal with challenging cross examination

– Remain professional, calm and reflective throughout the proceedings

Conclusions

• Criminal Procedure [Insanity] Act (1964). London, HMSO. Available from:http://www.legislation.gov.uk/ukpga/1964/84

• Daubert v. Merrell Dow Pharmaceuticals Inc, (1993) 509 U.S., 113 S.Ct 2786

• Mental Health Act (1983). London, HMSO. Available from: http://www.legislation.gov.uk/ukpga/1983/20/contents

• Mental Health Act (1983, revised 2007). London, HMSO. Available from: http://www.legislation.gov.uk/ukpga/2007/12/contents

References

Recommended Reading List

• British Psychological Society (2015). Psychologists as Expert Witnesses: Guidelines and Procedure 4th edition

• British Psychological Society (2007). Statement on the Conduct of Psychologists providing Expert Psychometric Evidence to Courts and Lawyers

• The Criminal Procedure Rules (2015) Part 19: Expert Evidence

• Crown Prosecution Service. (2010) Guidance Booklet for Experts Disclosure: Experts' Evidence, Case Management and Unused Material.