What is it?

An Expert Witness can be anyone with knowledge or experience of a particular field or discipline beyond that to be expected of a layman. The Expert Witness’s duty is to give to the Court or tribunal an impartial opinion on particular aspects of matters within his expertise which are in dispute.

In England & Wales and many other jurisdictions, the Court must give permission for an Expert Witness to give evidence.

An Expert Witness is not an expert adviser who is normally appointed by a party to assist in the formulation and preparation of a party’s claim or defence. An expert adviser does not have an overriding duty to the court but to the party instructing him.

The primary function of the expert witness is to assist the court in reaching its decision by providing independent expert/technical analysis and opinion on an issue(s), based on the information provided by those instructing him. The expert evidence should provide as much detail as is necessary to convince the judge that the expert’s opinions are well founded.

Roles of an Expert Witness

An expert witness may perform different roles at different stages of the proceedings such as assessing the:

the mental status of a client
openness, attachment, cognitive abilities, and capacity of a client
specific areas such as aggression or violence, substance abuse, and child abuse potential
the capacity of an individual to comprehend the police caution
vulnerability of a witness in an interrogative situation
the extent to which it may induce a coerced confession
risk of recidivism.

The opinions of an expert must relate to matters that cannot be understood without expert knowledge, such as proof of the psychological theory, the results of a psychometric test, results of experiments, interpretation of psychometric data, information regarding the effectiveness of treatment programmes.

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Conflict of Roles

It is inappropriate for a clinician to be instructed as an objective expert witness to their client as there may be a conflict of roles. A psychologist who has been in a therapeutic relationship with a client is disqualified from making any forensic contribution. Besides observing role boundaries, the issue of informed consent must be considered before assessing the subject of the report. Similarly, the limits to confidentiality must be made known in advance. The psychologist acting as an expert witness must ensure that their approach is scientific and that the tests or instruments being used are the most recent version with established reliability and are relevant to the legal issues being considered.

History of Expert Testimony

1899: Psychological consultation with juvenile courts started

Early 1920s: Psychologists began acting as expert witnesses in the American civil courts

1921 (Coca-Cola Company v. Chero-Cola Company): An experimental psychologist was asked if the trademarks of the two companies were similar enough to deceive the consumer.

1921 (State v. Driver): First case to involve an American psychologist qualified as an expert.

1940s -1950s: Psychologists testified in courts of law on a regular basis on a diverse range of topics

1940 (People v. Hawthorne): The Michigan Supreme Court stated that the standard for determining expert status was not a medical degree but the extent of the witness’s knowledge.

Post WWII era: Appellate courts allowed psychologists to offer expert testimony on the issue of mental responsibility for criminal behaviour

1954 (Hidden v. Mutual Life Insurance Co.): The Fourth Circuit Court of Appeals allowed psychological expertise to be applied to a civil case relating to mental status

1954: The Council of the American Psychiatric Association, the Executive Council of the American Psychoanalytical Association, and the American Medical Association joined in a resolution stating that only physicians were legitimate experts in the field of mental illness for purposes of courtroom testimony.

1962 (Jenkins v. United States): The Court of Appeals for the District of Columbia gave its own direct, although conditional, support to the use of psychologists as experts on the issue of mental illness

1975 (Brown v. Board of Education ruling): Psychologists testified and consulted with attorneys in the legal fight against school segregation

EXPERT EVIDENCE

Types of Witnesses

There are different types of witnesses who may be asked to give evidence in court proceedings (Saks 1990).

A witness of fact is someone who reports facts (the evidence about things they have seen, heard or experienced). Such witnesses are not allowed to provide an opinion.
A professional witness is a formal employee of a party who testifies to the facts of a case. The role of a professional witness is different from the expert witness.
An expert witness is recognised by the court as someone having specialist expertise who can assist the court in explaining technical concepts or by providing opinions based on their knowledge and experience.

According to the Indian Evidence Act 1872, Section 45 “Opinions of experts. —When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to the identity of handwriting] [or finger impressions] are relevant facts. Such persons are called experts."

Skills of an Expert Witness

It is important that an expert witness not only has in-depth knowledge about their specific area of expertise and competency but also understands the etiquette and rules of the court.

In addition to being well-informed about the scientific literature, they must be skilled in presenting both written and oral testimony. Another core skill for an expert witness is report writing that is relevant to the court i.e., the report must be clear, precise and comprehensible to the intended audience. For this, they should take account of all relevant information and revise opinions in view of new information.

An expert’s role is to assist the court rather than to represent one side or the other in a case or to answer the legal question. Thus, they have a duty to the court to provide an objective and comprehensive assessment; act independently without being influenced by either of the parties; offer an impartial opinion based on their training.

While providing an oral or written opinion, an expert witness is expected to acknowledge issues that are beyond their field of competence; state their level of confidence in the opinion provided; report upon aspects of another expert’s assessment which may be within their range of expertise.

PRACHI & SNEHA

INTRODUCTION

A forensic report is a report prepared in the course of an investigation into an alleged offence by a person with specialised knowledge or training, setting out the results of a forensic examination in the form of facts or opinions or a combination of both. In most jurisdictions, there are two broad areas of report writing: civil and criminal. Civil reports deal with civil commitment; civil competencies; and guardianship, compensation for mental injury and abuse and neglect of children. On the other hand, Criminal reports deal with competency to stand trial, mental state at the time of the crime, mitigating defences, and pre-sentencing reports to aid the court in disposition matters.

Report writing remains a core competency of forensic psychologists. The application of a forensic report lies in the implementation of psychological knowledge and understanding to address a legal question. Furthermore, forensic report writing helps the psychologist define and frame the referral question, organise their thinking, render information otherwise and convey conclusions or opinions. The forensic psychological report, which usually follows the assessment of an individual, typically explains a person’s behaviour in the context of three aspects: psychological state, background and motivation.

Explore our blog ahead to read more about forensic reports where we dive into the purpose, characteristics, guidelines and some major legal cases where these reports were used!

In a clinical report, referral questions are focused on diagnosis and treatment planning. Assessment is conducted for the purpose of determining the condition from which the patient suffers, and relieving symptoms by recommending optimal treatment approaches and other interventions. Examiners thoroughly interview their patients, conduct relevant clinical examinations (physical or laboratory), and may conduct psychometric testing (psychological and neuropsychological) if mental health or neurocognitive functioning is at issue. On the other hand, in a forensic report, typical referral questions involve criminal and civil competencies, criminal responsibility, opinions of the expert, causation, aggravation, contributory negligence and related factors in civil matters.

WHY ARE FORENSIC REPORTS IMPORTANT?

In a forensic mental health evaluation, referral questions in criminal cases centre around psycho-legal issues. The primary goal of the evaluation is to address whether an individual’s functional or legal capacities are or were impaired in order to facilitate legal and administrative decisions. Diagnosis, while certainly a factor contributing to the forensic examiner’s response to the legal question, is peripheral and treatment recommendations may not be relevant at all or be of relatively lesser interest to the legal system.

DIFFERENCE BETWEEN FORENSIC REPORTS AND CLINICAL REPORTS

CONTENTS OF A FORENSIC REPORT

FORENSIC REPORTS

Language Problems (19%)

Forensic reports are the primary work product of forensic psychologists. While the content of the report should be the most important, the clarity and credibility of the report are often impeded by problems with language. Technical language, especially when directed toward a legal or non-professional audience, can be confusing or distracting, and it lends itself to misconstrual. Another language problem noted in the literature is poor grammar.

Mixed Data and Interpretation (26%)

The interpretive section of a report, usually titled “Discussion” or “Summary,” is typically structured in a manner that requires the writer to make an assertion, or state an opinion, and then support this assertion with data. The interpretive sections of a report will, therefore, likely contain both data and interpretation. However, the data sections should only include factual information.

Inclusion of Irrelevant Data (31%)

Given the weight placed on each evaluation, some forensic psychologists have a tendency to include every bit of data collected in the report. The psychologist is likely faced with an enormous amount of data that varies in value.

Over-reliance on a Single Source of Data (22%)

In an effort to produce concise reports and avoid the inclusion of irrelevant data, some psychologists err in the other direction and fail to include sufficient data.

Improper Psychological Test Use (15%)

Another error noted in forensic reports is the improper use of psychological tests. This included the use of tests that were unnecessary to answer the forensic referral question, as well as tests that were used incorrectly given the subject’s age or race. Additionally, some tests were appropriate for the circumstances, but were interpreted or applied to the case incorrectly.

Failure to Consider Alternative Hypotheses (30%)

In court, an attorney presents information about his or her case in such a way that the narrative is convincing to the judge and jury. In forensic writing, in attempting to provide a convincing case for the reader (i.e., the court), some writers fail to consider alternative hypotheses. One significant problem with this approach, aside from a potentially biased report, is that the report is less defensible in court.

Opinions without Sufficient Explanation (56%)

Psychology requires knowledge of people and behavior. In forensic reports, this knowledge, along with acquired information about the subject, is used to offer an opinion. However, even the most accurate opinion loses some validity if its origin is not explained. After the writer has mapped out the assertions necessary to provide the foundation for the final opinion, each assertion should be supported by evidence.

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GUIDELINES FOR WRITING A FORENSIC REPORT

Organizational Problems (36%)

Every good report starts with a solid foundation. Usually, this foundation is composed of good ideas and good organization of these ideas. Unfortunately, even the best ideas can be lost if they are not communicated clearly. In general, reports that are both concise and precise are best. They should include all relevant information, but no superfluous information, and they should encourage the reader to keep reading.