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NOTES
1 See http://www.judiciary.state.nj.us/criminal/ModelCrimJuryChargeCommHENDERSONREPORT.pdf
2 In January 2017, after this chapter was written, the US Deputy Attorney General issued a new policy for the conduct of identification procedures which apply to all agencies in the Department of Justice (including the FBI). The policy is consistent with the recommendations described above but also recommends that all procedures are administered blind and confidence is carefully recorded immediately after the witness has made a decision. See https://www.justice.gov/archives/opa/press-release/file/92301/download
3 www.judiciary.state.nj.us/criminal/ModelCrimJuryChargeCommHENDERSONREPORT.pdf
16 The Role of the Expert Witness
DANIEL T. WILCOX AND LEAM A. CRAIG
CHAPTER OUTLINE
16.1 INTRODUCTION
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sp; 16.2 TAKING INSTRUCTION
16.3 EXPERT IN CONTENT AND PROCESS
16.4 EVIDENCE ON CLINICAL FACTORS
16.5 STANDARD OF PROOF
16.6 PROVIDING AN EXPERT OPINION
16.7 GIVING ORAL EVIDENCE AT COURT
16.8 CONCLUSIONS
16.9 SUMMARY
LEARNING OUTCOMES
BY THE END OF THIS CHAPTER, YOU SHOULD BE ABLE TO:
Understanding the use of psychological analysis in the role of an expert witness, forensic psychologist
Appreciate the principal research methods used to explore the role of the expert witness, forensic psychologist
Understand the implications of existing findings for the role of the expert witness, forensic psychologist.
16.1 INTRODUCTION
In the field of forensic psychology, the expert witness can undertake a number of different roles. In various circumstances, the expert may carry out evaluations examining the mental status of a client, or complete a personal history review to explore the individual’s openness, cognitive abilities, attachment patterns and general capacity for describing his/her life in a coherent, chronological way. This may include assessing individuals in relation to specific court matters or formal hearings, either instructed by one of the parties or as a jointly instructed expert, as within care and family proceedings in the UK. Information gathered through interview and observation is examined by the forensic psychologist, in addition to that obtained via administration and interpretation of relevant psychometric measures. Such psychological tests may target broad or specific issues of concern to the case, including assessment of personality, affect and intelligence, as well as specific areas like anger/violence issues, substance/alcohol concerns, child abuse potential, empathy/perspective taking abilities, features associated with sexual risk or providing a clinical diagnosis. In this chapter we will begin by outlining who should take instruction as an expert witness, what is expected of an expert witness, the standard of proof, the process of giving oral evidence and dealing with cross-examination.
16.2 TAKING INSTRUCTION
There is no definitive legal definition of an expert. It is a matter for the court to rule upon in each case. However, the Legal Guidance (prepared by the Crown Prosecution Service for England and Wales) 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” (Crown Prosecution Service, 2010, para. 36.2).
There are three types of witness in court; an ordinary witness, someone who is a “witness to the facts”, can only report what they have actually seen or heard and is not permitted to provide opinion; a professional witness, someone who is a formal employee of one side (e.g. a psychologist employed by a hospital, who gives evidence about treatment progress in a mental health review tribunal or a psychologist employed by a prison giving evidence in a Parole Board hearing on an inmate’s risk factors); and an independent expert witness, someone who provides independent expert evidence to a court on a matter within their specialist area of knowledge. Uniquely, by virtue of the expert’s qualifications, training and relevant experience, an independent expert witness can offer the court opinion whereas the evidence of other witnesses is confined to matters of fact.
In reporting, the expert forensic psychologist has an obligation to provide a robust, objective and balanced assessment that will inform the instructing parties and the court process overall about psychological matters relevant to the proceedings. The expert witness’s duty to the court overrides any obligation to the person who is instructing or paying them. This means that the expert witness has a duty to act independently and not be influenced by the party who instructed them. An expert is not an advocate and they are not trying to favour one view over the other, but are offering an impartial opinion based on their specialist experience and training. The instruction of an expert psychologist necessitates that the instructing party or parties are adequately satisfied with the qualifications of the expert within the areas of enquiry being addressed. A number of factors may bear on the making of such a decision, including confirmation of the expert’s educational background, normally the possession of a master’s degree or doctorate in psychology, together with the requisite professional certification or licensing to practise. In the UK, the professional body for psychologists is the British Psychological Society (BPS), which grants chartered status, and the statutory regulator is the Health and Care Professions Council (HCPC), to which all practising psychologist must be registered. With sufficient experience, and additional expert witness training, expert witnesses may also join accredited expert witness organisations such as The Academy of Experts as an indicator of their expert witness experience.
A recognised and respected history of professional consultancy and expert witness reporting is also highly valued by those instructing the forensic psychologist. A review of the psychologist’s CV frequently follows to ascertain the extent to which the psychologist to be appointed has practical experience and a strong knowledge base in the area they are reporting about, supported, ideally, by journal or book publications in the field about which they will be advising the court. Curriculum or programme development in this area of interest is important, as well as higher educational lecturing on the topic about which the expert will be instructed.
The expert’s method of reporting will normally be through a written response, which is submitted to the court, and subsequently addendum questions may be asked about the issues reported upon by the instructing solicitor or the parties involved, for further clarification.
16.3 EXPERT IN CONTENT AND PROCESS
Expert witnesses are expected to be familiar and qualified in content and process. Content refers to having completed appropriate training, holding appropriate qualifications and having appropriate specialist experience, whereas process refers to the act of giving evidence in a legal forum, either orally or in written form. Expert witnesses are not expected to be lawyers but they are expected to understand the court processes and how expert witnesses operate within these legal settings. Particular duties of an expert are set out in Practice Direction 25B, entitled “The Duties of an Expert, the Expert’s Report and Arrangements for an Expert to Attend Court” (MOJ: Family Procedure Rules, 2010; revised 2012) and the Criminal Procedure Rules (Part 19, Expert Evidence, 2015).
Depending on the nature of the particular case at hand, the expert witness is expected to be familiar with relevant legislation, such as the Police and Criminal Evidence Act (PACE, 1984), Mental Health Act (MHA, 2007), Mental Capacity Act (MCA, 2005) and definitions of “risk” and “dangerousness” as detailed within the Criminal Justice Act (CJA), 2003.
In hearings addressing whether the defendant is fit to plead, the guidelines for such cases are determined in accordance with tests laid down by common law. The procedure by which the court makes its decision is contained within the Criminal Procedure (Insanity) Act 1964 (s. 4, 4a (2), (3) and 5) amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, which refers to a “disability such that it would constitute a bar to his being tried”. In England and Wales the legal test of fitness to plead is based on the ruling of Alderson B. in Pritchard (R v. Pritchard, 1836); the accused will be unfit to plead if he is unable:
to comprehend the course of proceedings on the trial, so as to make a proper defence;
to know that he might challenge any jurors to whom he may object;
to comprehend the evidence; or
to give proper instructions to his legal representatives.
The question of unfitness to plead is determined by a judge (Criminal Procedure [Insanity] Act 1964, s. 4 (as amended by the Domestic Violence, Crime and Victims Act 2004, s. 22). The decision should normally be made as soon as it arises (Criminal Procedure [I
nsanity] Act 1964, s. 4), which would ordinarily be before trial, but the court may postpone consideration of unfitness until any time before the opening of the defence case. If the judge determines that the defendant is unfit to plead, evidence will be heard and the jury will be asked to determine whether he did the act or made the omission charged against him as the offence (section 4A(2), (3)). This process avoids the detention of innocent persons in hospital merely because they are mentally unfit. It has been held that the reference to the “act or omission” means that the jury should not normally consider whether the defendant had the requisite mens rea (mϵnz ˈriːə/; Latin for “guilty mind”). The jury acquits where it is not satisfied. Therefore, there is a so-called “trial of the facts” whereby the case against the defendant is tested, although this is not considered a trial. In cases where the defendant is found unfit to plead, the court may make one of the following orders:
An admission order to hospital: equivalent to a hospital order (Section 37, Mental Health Act, 2007) with or without restriction (Section 41, Mental Health Act, 2007). The restrictions under Section 41 may be given only by the Crown Court, and if “it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm” (s. 41(1)). Where the offence is unlawful killing, there is a mandatory hospital order with restriction, without limit of time.
A guardianship order: This is not a detaining section but a person may be made subject to guardianship if (s. 7(2)): he or she is suffering from mental disorder of a nature or degree that warrants his reception into guardianship under this section; and