Paul John Griffiths
What are the major issues to consider when writing for court – discuss with reference to psychologists as expert witnesses.
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Back to Contents½Essays on Forensic Psychology ½ Home Page ½ [email protected]
This essay was originally submitted to the University of Birmingham for the Master of Science in Criminological Psychology. Newly qualified forensic psychologists are considered by Brodsky and Rabey (1972), to be "court room unfamiliar" (as cited by Weiner 1987 p.511); and Mitchell (1998 p.28), state that inexperienced Psychologists under ‘cross-examination’ are "easy targets for experienced Barristers". Thus specific skills are needed as part of the forensic psychologist’s tool-kit. This essay provides insight into courtroom etiquette, specifically from the forensic psychologist’s perspective.
Psychologists operating within the ‘Forensic’ arena work within a variety of settings include Health, Prison, Social, Probation and Educational Departments. Each area involves particular employer role, contractual responsibilities and awareness of the bureaucratic traditions. This essay focuses on the Independent Forensic Psychologist, who provides a service to the legal/judicial system, without the restrictions of employer-employee relationships. It explains how Forensic Psychology provides a service to the English Judicial System. It discuses the major issues involved in the formulation of expert opinion, not only in written form but especially when providing oral evidence.
THE FORENSIC PSYCHOLOGIST AS EXPERT WITNESSES Back to Contents
The notion of ‘expertise’ suggests quality and reliability; it is the result of special education, experience and training (Nijboer 1995 p.555). Psychologists acting as ‘expert witness’ in eye witness testimony cases are considered by Memon (1998 p.212) to have a limited advisory role to the legal team, but he thinks they are more often involved in the preparation of detailed court reports. In legal terms, ‘expertise’, ‘expert’, or ‘expert witnesses’ are used to refer to specialist topics and specialists from disciplines and professions other than law (Nijboer 1995 p.555). Moreover, recognition is not restricted primarily to professionals or academics; practitioners, who are considered by the courts to have that sufficient experience and knowledge, may also be, recognized as expert witnesses.
Mitchell (1998 p.26) cites Howard (1987) who postulated two types of Psychological expert evidence: firstly, "that with a medical component" and secondly "that which is purely psychological". And it’s important to note that Chartered Psychologists in the UK, giving expert evidence outside of their area of expertise might be disciplined by the British Psychological Society (Nijboer 1995 p.557).
Forensic Psychologists acting as ‘Expert Witnesses’ are not restricted to resolving disputes in court; they are often called upon in ‘Public Inquiries’, to provide evidence on particular topics or incidents (Nijboer 1995 p.556). Furthermore, with respect to court-appointed ‘expert witnesses’ a court can decide to call an expert witness, who has not been called by either party, if this is considered to be in the interest of justice (Nijboer 1995 p.560). A Forensic Psychologist called upon to provide expert evidence is subject to the same procedures of examination and cross-examination as any other witness. It is considered good practice, by both Nijboer (1995 p.560) and Memon (1998 p.211) that after being sworn in, an ‘Expert Witness’ should provide a summary of his or her qualifications and experience. The existence of contradicting expert opinion is considered by Weiner (1987 p.515) to bring a "sobering measure of reality into forensic consulting. One experts’ opinion is neither the only nor the last word". It is quite common for experts of both sides to come to court with a joint statement (Hodgkinson 1990).
Europe has two legal frameworks: Inquisitorial and Adversarial. In the Inquisitorial system, as found on the European Continent, psychologists are generally considered to be "an aid or assistant of the court" (Nijboer 1995 p.558) and principally appear in a non-partisan educational role (Memon 1998). Within this system, experts have more freedom in how they present their evidence; they are encouraged to re-enact scenarios in order to resolve issues of conflict. Their evidence, when presented, includes a summary of the literature, thus providing juries with a balanced overview of the relevant current research available (Memon 1998 p.212).
In order to understand the English and Welsh ‘Adversarial’ system especially with respect to a Forensic Psychologist presenting ‘expert evidence’, it is advantageous to have insight into both ‘Common’ and ‘Statutory’ Law and to have a working knowledge, of both Civil and Criminal Court procedures. Until the middle of the twentieth century it was rare for the judiciary to accept testimony on mental issues from experts other than medical practitioners (O’Connor, Sales and Shuman 1996). But today Psychologists provide expert testimony throughout the judicial spectrum (Mitchell 1998 p.26).
The admissibility of expert evidence in England and Wales depends substantially upon the courts discretion. Common Law provides general rules for deciding on the admissibility of expert evidence (Nijboer 1995 p.561). Ordinarily, witnesses can only provide evidence about the facts of the case in question (Nijboer 1995 p.561). But Faulkes v Chadd (1782) shows that expert witnesses may be called upon to state their opinion on a matter within their special knowledge or skill. This is still important, when the court is unable to form an opinion, due to the absence of special study, skill or experience.
R v Turner [1975] shows the role of ‘expert witness’ is somewhat restricted. The witness may not comment on issues, which the Judges declare to be common sense, or within the knowledge or experience of ordinary people. Therefore, the forensic psychologist acting as an ‘expert witness’ must be careful not to adopt the role of the judge or jury. Indeed, evidence regarding the very issue, with which the trial is concerned is prohibited; although psychologists can include opinions as to the credibility of witnesses, they must refrain from offering opinion about whether the accused was mentally disordered at the time of the crime (Nijboer 1995 p.561).
In Common Law a psychologist as an ‘expert witness’ may give evidence of the defendants personality traits as revealed by clinical tests (R v Oakley [1979]). R v Abadom [1982] illustrates the formulation of opinion by reference to admissible supporting evidence. The primary facts on which that opinion is based must be proved by admissible evidence. The expert witness is then entitled to draw on the work (including unpublished work) of others in the field of expertise, as part of the process of arriving at his conclusion, provided he refers to that material in his evidence so that the cogency (insight) and probative (investigative) value of his conclusion can be tested by reference to that material. Reliance on the work of others and reference to it in evidence does not infringe the hearsay rule in these circumstances". This supports the findings of the much earlier case of Fenwick v Bell (1844) allowing an expert to refer to professional treaties, tables, reports etc. in order to refresh his memory, demonstrating that, it is his evidence and not the material which is admissible.
STATUTORY PROVISIONS Back to Contents
In England and Wales Statutory provisions for regulating the admissibility of expert evidence can be found in the 'Civil Evidence Act 1968', '1972', 'Police and Criminal Evidence Act 1984' and the 'Criminal Justice Act 1988'. The 'Civil Evidence Act 1968' states where a person is called as a witness in any civil proceedings, his opinion or any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence. The 'Civil Evidence Act 1972 S3', states that a "relevant matter includes an issue in the proceedings in question".
LAW of EVIDENCE Back to Contents
The law of evidence is relevant (Nijboer 1995 p.558), especially when we remember that solicitors and barristers are less knowledgeable about the kind of questions that can meaningfully be asked of psychologists. Expert witness should therefore be careful to ensure that they are sufficiently experienced and qualified to give evidence. Their findings need to be presented clearly, with 'fact' separated from 'opinion' and any differences of opinion within particular disciplines acknowledged (Nijboer 1995 p. 562). Important issues with respect to the admissibility of expert evidence are considered by Memon (1998 p.210) to be firstly, the qualifications of the expert and secondly, the relevance and scientific status of the expert’s testimony. In order to introduce ‘expert evidence’, consideration must be given to its admissibility and probative value (Nijboer 1995 p.559). The test for admissibility is reported by Hodgkinson (1990) to be whether the substance of the issue, require specific expertise for ‘observation, analysis or description’.
With respect to the standards of proof, in civil cases the courts final decision should be in favor of the plaintiff only if the court is satisfied, on the balance of the probabilities, that his or her case is more likely to be true than the defendant’s (Nijboer 1995 p.562). In Civil Courts, psychologists acting in a forensic capacity may be called to use their clinical expertise as well as scientific knowledge (Gudjonsson 1996). We are fortunate to have guidelines prepared by Simons and Banks (1999), on behalf of the British Psychological Society, entitled "Psychologists and the New Civil Procedure": Copies available from the Leicester Office of the B.P.S.
Previously, in England and Wales, experts were called upon to work for one of the parties to the litigation (Nijboer 1995 p.557), but nowadays experts owe a duty to the courts (Simons and Banks 1999p.9). Psychologists are used in civil cases for opinions regarding ‘mental capabilities’, ‘mental state’ and in child custody disputes (Memon 1998 p.213). It has even been known for civil disputes to be resolved, without a court hearing being necessary, because of the evidence of an expert witness (Nijboer 1995 p.556).
Gudjonsson (1996) informs us that psychologists, who prepare court reports in suspected head injury and compensation cases, would rarely have to attend court in order to provide oral evidence. With regards to personal injury issues, psychologists are involved in the assessment of product liability (Anastasi 1990 p.480). In claims of personal injury, current functioning ability needs to be compared against a previous baseline. It is Weiner (1987 p.522) who suggests that this baseline can consist of past intelligence test scores, history of educational/occupational accomplishment, evidence from relatives or friends "concerning earlier patterns of behavior and adjustment". Myers (1993) as cited by Memon (1998 p.214) states that, "some civil courts allow expert witnesses to testify as to whether they believe the child was abused and whether the child’s symptom pattern fits".
CRIMINAL COURTS Back to Contents
In 1993 the Royal Commission on Criminal Justice, raised concern regarding the fact that forensic scientists had become over identified with the prosecution and lacked a degree of independence. They found that failure to identify and make known alternative information and explanation, was a factor in a number of cases of wrongful conviction. Mitchell (1998 p.26) illustrates this in R v. Raghip (1991), where psychological expert evidence played a vital role in quashing a conviction because of the unreliability of a defendant’s confession due to suggestibility. What emerged from the Royal Commission, was the recommendation that the independence and quality of expert evidence should be improved (Nijboer 1995 p.558). Professional bodies such as the British Psychological Society and the Law Society were encouraged to maintain a register of members qualified to act as expert witnesses in particular fields (Runciman 1993).
In criminal cases, the prosecution must prove guilt beyond reasonable doubt (Nijboer 1995 p.561); reasonable doubt is Barristers’ rather than Psychologist terminology (Mitchell 1998 p.29). In Crown Court, "psychologists tend to be instructed in the more serious cases, such as those involving sexual offences, violence and unlawful killing" (Gudjonsson 1996). Memon (1998 p.214) researched the impact of expert evidence and found that: "Expert witnesses in child abuse cases for instance may be called to educate fact finders on the relevant scientific literature about child witness testimony and interviewing". Forensic Psychologists often encounter issues regarding the establishment of criminal responsibility and the determination of competency in order to stand trial (Anastasi 1990 p.480).
Psychologists are called to give opinions regarding sanity, competency and the potential danger of the accused (Memon 1998 p.213) and Moore (1996) discusses the issue in ‘Assessment & Reports’ (Ibid.). When addressing past circumstances with respect to criminal responsibility, Weiner (1987 p.522), suggests asking: "What was the defendant’s mental state at the time of the offence?" and "Did this mental state contribute to the commission of the offence". Oral evidence is preferred in criminal trials, but once admitted, the evidence is no longer restricted to the benefit of the party that called it. The competence of an expert witness is subject to the same rules that apply to witnesses as to fact. Forensic psychologists may be called by either party (Nijboer 1995 p.560) and can provide an understanding of the effect of expert testimony on eyewitness behavior (Memon 1998 p.210). They can also be extremely helpful at the sentencing stage of criminal trials (Nijboer 1995 p.563).
ASSESSMENTS and REPORTS Back to Contents
Moore (1996 p.136) says "a very precise explanation of the assessment and reporting process is also the right of the individual being assessed". With respect to the writing and purpose of forensic reports, Weiner (1987 p.511), suggests that "effective consultation flows from effective communication" and Moore (1996 p.136) states that when writing court reports, psychologists should outline their role and reiterate what they have been asked to do. With reference to working within the judicial system, Ownby (1997 p.139) suggests that psychologists "must acquire a familiarity with the ways Barristers use language if they wish to write reports that will be useful to the persons assessed as well as in the judicial decision-making process".
In determining the focus of forensic reports, Weiner (1987 p.518) suggests a distinction needs to be drawn "between acts of commission and acts of omission". He goes on to state that under no circumstance should a psychologist "compromise his or her integrity by knowingly including a written report a misleading or inaccurate statement" and with respect to ‘omission’, "there is rarely any compelling need to answer questions that the client has not asked". Ownby (1997 p.140) reminds us that although a report may be furnished as expert opinion, the psychologist "may be required to explain in detail how a conclusion was reached if called on to testify in a courtroom proceeding". This is reiterated by Moore (1996 p.139) who states "in order to carry out a risk assessment of a particular harmful behavior, a good theoretical understanding of this type of conduct is absolutely essential…it is preferable to have access to actuarial data, and to quote it where applicable".
As to psychological diagnostic assessments, Weiner (1987 p.519) recommends that they should include a "multifaceted test battery…(which) provide sufficiently extensive data identifying broad aspects of a precise cognitive and effective capacities, preferred coping styles, level of adaptation and amenability to alternative modes of intervention". However, Weiner (1987 p.520) warns against those psychologists who provide written evidence solely centered around test findings, for they "must plead ignorance when asked to comment about other key elements of the case, (because they) are poorly prepared to acquit themselves effectively". Moore (1996 p.140) suggests that forensic psychologists must keep up to date with current research practice by utilizing the services of Librarians (information officers), undergoing formal training, attending conferences or inviting outside speakers to the work setting.
As to ‘time frame’ Weiner (1987 p.521) states psychologists will be influenced by "primarily to present, past or future circumstances". Moore (1996 p.141) suggests that very "few assessors would be prepared to offer a prediction of ‘No Risk’…everyone represents a risk, in the sense that they are theoretically capable of causing harm". When addressing present circumstance with respect to competency evaluation Weiner (1987 p.521) suggests "the main question concerns a defendant’s current capacity to understand the charges and participate in the defense…current interview, test and observation findings will provide a reliable indicator of functioning capacity".
As to the acknowledgement of sources of information Moore (1996 p.138) suggests that psychologists should "avoid stating as fact anything which cannot be verified beyond reasonable doubt and state your sources…it can seem cumbersome to keep repeating ‘apparently’, ‘by his account’, ‘it seems that’, ‘she reports that’, but to do less is to claim a truth of which you cannot be sure". It is important to include a record of individuals or organizations failing to provide information requested and "indicate what part their contribution might have played in your findings" (Moore 1996 p.138).
Weiner (1987 p.523) suggests that the Forensic Psychologist needs to investigate the antecedents of a crime, for example, the defendant’s statement, eyewitness evidence and police accounts "together with a current psychological evaluation in order to produce an informed opinion". With respect to apportioning blame after a disaster, Moore (1996 p.141), consider that "the person who has blithely asserted ‘No Risk’ rather than ‘Low Risk unless A, B or C should occur, when probability would increase’ will be a sitting duck".
Once a forensic psychologist has been instructed the final report becomes the property of the instructing body. Mitchell (1998 p.27) informs us that Psychologists may come under pressure to change the report to favor the client. However, the author does in fact retain some copyright over its contents (Moore 1996 p.137). Moore (1996 p.137) also states that "the solicitor has the right to suppress the report in many cases, and you…do not automatically have the right to refer to the material in a subsequent matter concerning that person". It may be wise to remember an early statement of Moore (1908 as cited by Mitchell 1998 p.29) that "Experimental Psychologists are no more welcome in the court room than Sherlock Holmes". For this reason the Forensic Psychologist must appreciate courtroom etiquette.
Before Forensic Psychologists compile court reports, they should be thoroughly familiar with the following: The differences between the two European legal frameworks ‘Inquisitorial’ and ‘Adversarial’; A working knowledge of the ‘Law of Evidence’, in relation to both Civil & Criminal Proceedings and recognize the area of ‘Hearsay Evidence’ with respect to the inadmissibility of supporting material used as references.
It is essential to have the skill to interpret psychometric measures, especially when undergoing cross-examination by experienced Barristers. Risk assessment must be fully understood and effective communication both written and verbal, is vital. When a court reports is being complied, the individual under scrutiny must be informed of the purpose and format of the report. The right qualifications and experience are prerequisites for the ‘Expert Witness’. Therefore, in both written and oral evidence, informing the court of these is not only good practice but ethically essential and in order to remain an expert, the psychologist needs to be up to date with current research and present good practice.
The psychologist’s research investigation skills are valuable, in the formulation of opinion, therefore, psychologists must obtain as much information as possible about ‘antecedents’, ‘behavior’ and ‘consequence’ of the incident in question, before opinions can be formed. ‘Copyright Law’ covers ownership of a report. However, once instructed and when that instruction is accepted, the psychologist becomes legally committed. Once tendered, the report becomes the property of that requesting body. However, the author does retain some rights in law. The British Psychological Society has published information to assist psychologists working in the forensic arena entitled "Psychologists and the New Rules of Civil Procedure" (Simons and Banks 1999). All psychologists, particularly the newly qualified should become familiar with these rules!
Statutes: Back to Contents
Civil Evidence Act 1968, 1972.
Police and Criminal Evidence Act 1984.
Criminal Justice Act 1988.
Cases: Back to Contents
R v Abadom [1982] 1 All ER
R v Oakley [1979] RTR 417
Faulkes v Chadd (1782) 3 Doug KB157
Fenwick v Bell (1844) 1 Car and Kir 312
R v Turner [1975] Q.B. 834
R v Raghip (1991) Q Law Report: The independent, 6 December
Reference: Back to Contents
Anastasi, A. (1990). Psychological Testing. New York: Macmillan.
Blan, T. (1984). The psychologist as expert witness. Cited in Weiner, B. and Hess, A. (1987). Handbook of Forensic Psychology. Chichester: Wiley.
Brodsky, S. and Robey, A. (1972). On becoming an expert witness: Issues of orientation and effectiveness. Cited in Weiner, B. and Hess, A. (1987). Handbook of Forensic Psychology. Chichester: Wiley.
Gudjonsson, G. (1996). Psychological Evidence in Court. The Psychologist. 9 (5) p.213-219.
Gudjonsson, G. (1996). Psychology and the Law. In C. Hollin (Ed.) Working with Offenders (Chapter 2). Chichester: Wiley.
Howard, L. (1987). The uses and misuses of psychological evidence, cited by E, Mitchell (1998). Psychologists as Expert Witnesses. Forensic Update 54(26) p.26-29.
Hodgkinson, T. (1990). Expert Evidence: law and Practice. As cited by Nijboer, H. (1995). Expert Evidence. In R. Bull & D. Carson (Eds.) Handbook of Psychology in legal Contexts (Chapter 6.5). Chichester: Wiley.
Memon, A. (1998). Expert testimony. In A. Memon, A. Vrij and R. Bull (Eds.) Psychology and Law: Truthfulness, Accuracy and Credibility (Chapter 10). London: McGraw-Hill.
Mitchell, E. (1998). Psychologists as Expert Witnesses. Forensic Update 54(26) p.26-29.
Moore, B. (1996). Risk Assessment: A Practitioner’s Guide to predicting Harmful Behavior. : Whiting and Birch.
Moore, C. (1908). Yellow Psychology. Cited By E, Mitchell (1998). Psychologists as Expert Witnesses. Forensic Update 54(26) p.26-29.
Myers, J. (1993). Expert testimony regarding child sexual abuse. Cited by Memon, A. (1998). Expert testimony. In A. Memon, A. Vrij and R. Bull (Eds.) Psychology and Law: Truthfulness, Accuracy and Credibility (Chapter 10). London: McGraw-Hill.
Nijboer, H. (1995). Expert Evidence. In R. Bull & D. Carson (Eds.) Handbook of Psychology in legal Contexts (Chapter 6.5). Chichester: Wiley.
O’Connor, M., Sales, B. and Shuman, D. (1996). Mental health professional expertise in the courtroom. As cited by Memon, A. (1998). Expert testimony. In A. Memon, A. Vrij and R. Bull (Eds.) Psychology and Law: Truthfulness, Accuracy and Credibility (Chapter 10). London: McGraw-Hill.
Ownby, R. (1997). Psychological Reports: A guide to report writing in professional psychology. Chichester: Wiley.
Simons, D. and Banks, M. (1999). Psychologists and the New Rules of Civil Procedure. BPS: Leicester.
Runciman, (1993). Misplaced Reference – Sorry!
Weiner, B. (1987). Writing Forensic Reports. In Weiner, B. and Hess, A. (1987). Handbook of Forensic Psychology (Chapter 19). Chichester: Wiley.
Weiner, B. and Hess, A. (1987). Handbook of Forensic Psychology. Chichester: Wiley.
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