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Showing posts with label Expert Witness. Show all posts
Showing posts with label Expert Witness. Show all posts

Monday, November 22, 2021

Revisiting Daubert: Judicial Gatekeeping and Expert Ethics in Court

Young, G., Goodman-Delahunty, J.
Psychol. Inj. and Law (2021). 
https://doi.org/10.1007/s12207-021-09428-8

Abstract

This article calls for pragmatic modifications to legal practices for the admissibility of scientific evidence, including forensic psychological science. We submit that Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) and the other two cases in the U.S. Supreme Court trilogy on expert evidence have largely failed to accomplish their gatekeeping goals to assure the reliability of scientific evidence admitted in court. Reliability refers to validity in psychological terms. Part of the problem with Daubert’s application in court is the gatekeeping function that it ascribes to judges. Most Daubert admissibility challenges are rejected by judges, who might lack the requisite scientific expertise to make informed decisions; educating judges on science might not be an adequate solution. Like others who have put forth the idea, pursuant to Federal Rule of Evidence (FRE) 706, we suggest that court-appointed impartial experts can help judges to adjudicate competing claims on admissibility. We further recommend that an expert witness ethics code sworn to in legal proceedings should be mandatory in all jurisdictions. The journal Psychological Injury and Law calls for comments and further recommendations on modifying Daubert admissibility challenges and procedures in civil and criminal cases to develop best practices to mitigate adversarial allegiance and other unconscious biases in expert decision-making.

Advantages of an Expert Witness Ethics Code Sworn to in Legal Proceedings

We suggest that in the field of psychological injury, jurisdictions in which courts reinforce expert obligations via an ethics code for expert witnesses will lead to more balanced and impartial testimony. The essential principle guiding a science-based expert witness ethics code sworn to in legal proceedings is that the process of forensic assessment, as well as the subsequent proffer of testimony in court based on those assessments, should account for all the reliable evidence gathered in a particular case as determined by methodologies informed by scientific research in the relevant field.  This recommendation is in line with psychological research showing that expert bias is reduced when experts do not focus on a single question or hypothesis, but address a “line up” of competing and alternative conclusions and hypotheses (Dror, 2020). The components of the expert witness oath, like the appointment of a court-appointed expert, encourage experts to adopt a differential diagnosis approach, in which all different conclusions and their probability are presented, rather than one conclusion (Dror, 2020). Opinions, interpretations, and conclusions based on the data, information, and evidence will more likely be impartial, fully scientifically informed, and just.

Tuesday, June 1, 2021

We Must Rethink the Role of Medical Expert Witnesses


Amitha Kalaichandran
Scientific American
Originally posted 5 May 21

Here are two excerpts:

The second issue is that the standard used by the courts to assess whether an expert witness’s scientific testimony can be included differs by state. Several states (including Minnesota) use the Frye Rule, established in 1923, which asks whether the expert’s assessment is generally accepted by the scientific community that specializes in this narrow field of expertise. Federally, and in several other states, the Daubert Standard of 1993 is used, which dictates the expert show their scientific reasoning (so the determination of validity is left to the courts), though acceptance within the scientific community is still a factor. Each standard has its drawbacks. For instance, in Frye, the expert’s community could be narrowly drawn by the legal team in a way that helps bolster the expert’s outdated or rare perspective, and the Daubert standard presumes that the judge and jury have an understanding of the science in order to independently assess scientific validity. Some states also strictly apply the standard, whereas others are more flexible. (The Canadian approach is derived from the case R v. Mohan, which states the expert be qualified and their testimony be relevant, but the test for “reliability” is left to the courts).

Third, when it comes to assessments of cause of death specifically, understanding the distinction between necessary and sufficient is important. Juries can have a hard time teasing out the difference. In the Chauvin trial, the medical expert witnesses testifying on behalf of the prosecution were aligned in their assessment of what killed Floyd: the sustained pressure of the officer’s knee on Floyd’s neck (note that asphyxia is a common cause of cardiac arrest). However, David Fowler, the medical expert witness for the defense, suggested the asphyxia was secondary to heart disease and drug intoxication as meaningful contributors to his death.

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Another improvement could involve ensuring that courts institute a more stringent application and selection process, in which medical expert witnesses would be required to demonstrate their clinical and research competence related to the specific issues in a case, and where their abilities are recognized by their professional group. For example, the American College of Cardiology could endorse a cardiologist as a leader in a relevant subspecialty—a similar approach has been suggested as a way to reform medical expert witness testimony by emergency physicians. One drawback, according to Faigman, is that courts would be unlikely to fully abdicate their role in evaluating expertise.

Monday, April 23, 2018

Bad science puts innocent people in jail — and keeps them there

Radley Balko and Tucker Carrington
The Washington Post
Originally posted March 21, 2018

Here is an excerpt:

At the trial level, juries hear far too much dubious science, whether it’s an unproven field like bite mark matching or blood splatter analysis, exaggerated claims in a field like hair fiber analysis, or analysts testifying outside their area of expertise.  It’s difficult to say how many convictions have involved faulty or suspect forensics, but the FBI estimated in 2015 that its hair fiber analysts had testified in about 3,000 cases — and that’s merely one subspecialty of forensics, and only at the federal level.    Extrapolating from the database of DNA exonerations, the Innocence Project estimates that bad forensics contributes to about 45 percent of wrongful convictions.

But flawed evidence presented at trial is only part of the problem.  Even once a field of forensics or a particular expert has been discredited, the courts have made it extremely difficult for those convicted by bad science to get a new trial.

The Supreme Court makes judges responsible for determining what is good science.  They already decide what evidence is allowed at trial, so asking them to do the same for expert testimony may seem intuitive.  But judges are trained to do legal analyses, not scientific ones.  They generally deal with challenges to expert testimony by looking at what other judges have said.  If a previous court has allowed a field of forensic evidence, subsequent courts will, too.

The article is here.

Note: These issues also apply to psychologists in the courtroom.

Wednesday, August 23, 2017

Procedural ruling sets higher bar for expert-witness testimony

Brendan Murphy
AMA Wire
Originally posted August 9, 2017

In a procedural decision that could keep so-called junk science out of the courtroom, the District of Columbia Court of Appeals adopted an evidentiary standard that places additional scrutiny on testimony from expert witnesses.

The case at the center of the ruling—Motorola v. Murray—raises the issue of whether cellphones cause brain cancer. In total, 29 cases on the subject matter were brought before the Superior Court for the District of Columbia.

The court did acknowledge isolated strands of scientific data that suggest a possible causal connection between cellphone use and brain cancer. But the court ultimately ruled that based on the research to date, there was inadequate data for any scientist to opine on a causal connection between cellphone use and cancer to any degree of scientific certainty.

In spite of this, the plaintiffs offered their own expert testimony to the contrary, arguing that the jury should determine the validity of the testimony.

The article is here.

Saturday, May 13, 2017

Justices Blast One-Stop-Shop Experts in Alabama

Tim Ryan
Courthouse News
Originally posted April 24, 2017

The Supreme Court’s liberal justices shredded an argument by Alabama’s solicitor general Monday that criminal defendants are not entitled to a mental health expert separate from the ones tapped by prosecutors.

McWilliams v. Dunn, the case the Supreme Court heard this morning, is nested inside the court’s 1984 decision in Ake v. Oklahoma, which held that poor criminal defendants using a defense of insanity are entitled to an expert to help support their claim.

A split has emerged in the 30 years since the decision, with some states deciding one expert helping both the prosecution and defense satisfies the requirement, and others choosing to assign an expert for the defendant to use exclusively.

The article is here.

Tuesday, May 24, 2016

Junk Science on Trial

Jordan Smith
The Intercept
Originally posted May 6 2016

Here is an excerpt:

Expert Infallibility?

The Supreme Court's opinion makes little sense if you consider it critically. Under the court's reasoning, a conviction could be overturned if, for example, an eyewitness to a crime later realized he was wrong about what he saw. But if an expert who testified that DNA evidence belonged to one person later realized that the DNA belonged to someone else, nothing could be done to remedy that error, even if it was responsible for a conviction.

In the wake of that opinion, and with Richards's case firmly in mind, lawyers from across the state asked for a change in law -- one that would make it clear that a conviction can be overturned when experts recant their prior testimony as a result of scientific or technological advances.

Known as a junk science statute, the Bill Richards Bill changed the state penal code to address problematic forensic practices in individual criminal cases. Faulty forensics have been implicated in nearly half of all DNA exonerations, according to the Innocence Project, and in roughly 23 percent of all wrongful convictions, according to the National Registry of Exonerations. California's bill, which passed with bipartisan support, is only the second such statute in the country (following one in Texas), and its passage propelled the Richards case back to the Supreme Court for further consideration.

The article is here.

Sunday, November 8, 2015

Deconstructing the seductive allure of neuroscience explanations

Weisberg DS, Keil FC, Goodstein J, Rawson E, Gray JR.
Judgment and Decision Making, Vol. 10, No. 5, 
September 2015, pp. 429–441

Abstract

Explanations of psychological phenomena seem to generate more public interest when they contain neuroscientific information. Even irrelevant neuroscience information in an explanation of a psychological phenomenon may interfere with people's abilities to critically consider the underlying logic of this explanation. We tested this hypothesis by giving naïve adults, students in a neuroscience course, and neuroscience experts brief descriptions of psychological phenomena followed by one of four types of explanation, according to a 2 (good explanation vs. bad explanation) x 2 (without neuroscience vs. with neuroscience) design. Crucially, the neuroscience information was irrelevant to the logic of the explanation, as confirmed by the expert subjects. Subjects in all three groups judged good explanations as more satisfying than bad ones. But subjects in the two nonexpert groups additionally judged that explanations with logically irrelevant neuroscience information were more satisfying than explanations without. The neuroscience information had a particularly striking effect on nonexperts' judgments of bad explanations, masking otherwise salient problems in these explanations.

The entire article is here.

Thursday, January 8, 2015

Framed by forensics

Junky, out-of-date science fuels jury errors and tragic miscarriages of justice. How can we throw it out of court?

By Douglas Starr
Aeon Magazine
Originally published

Here is an excerpt:

Rivera’s case represents a tragic miscarriage of justice. Seen another way, it’s also the result of bad science and anti-scientific thinking – from the police’s coercive interview of a vulnerable person, to the jury’s acceptance of a false confession over physical evidence, including DNA.

Unfortunately, Rivera’s case is not unique. Hundreds of innocent people have been convicted by bad science, permitting an equal number of perpetrators to go free. It’s impossible to know how often this happens, but the growing number of DNA-related exonerations points to false convictions as the collateral damage of our legal system. Part of the problem involves faulty forensics: contrary to what we might see in the CSI drama shows on TV, few forensic labs are state-of-the-art, and they don’t always use scientific techniques. According to the US National Academy of Sciences, none of the traditional forensic techniques, such as hair comparison, bite-mark analysis or ballistics analysis, qualifies as rigorous, reproducible science. But it’s not just forensics: bad science is marbled throughout our legal system, from the way police interrogate suspects to the decisions judges make on whether to admit certain evidence in court.

The entire article is here.

Wednesday, December 31, 2014

Making sense of a court's two cents

By David DeMatteo, JD, PhD, Jaymes Fairfax-Columbo, BA, and Daniel A. Krauss, JD, PhD
The Monitor on Psychology
December 2014, Vol 45, No. 11
Print version: page 24

The Pennsylvania Supreme Court recently decided two cases that address whether parties can use expert witnesses to help juries assess lay witness testimony. In one case, Commonwealth v. Walker (2014), the court lifted a ban on the admissibility of expert testimony regarding eyewitness identification. In the other case, Commonwealth v. Alicia (2014), the court held that expert testimony regarding false confessions was inadmissible.

Although the two outcomes diverged, robust research suggests that eyewitness identification and false confessions pose significant problems for the legal system (Wells et al., 1998; Kassin et al., 2010). So, how did the court justify its differing opinions? And what lessons can be learned from these discrepant decisions concerning how social science can influence legal decisions?

The entire article is here.

Sunday, December 28, 2014

Psychologists and psychiatrists serving as expert witnesses in court: what do they know about eyewitness memory?

Annika Melindera & Svein Magnussena
Psychology, Crime & Law
Volume 21, Issue 1, 2015, pp 53-61

Abstract

Expert witnesses have various tasks that frequently include issues of memory. We tested if expert witnesses outperform other practitioners on memory issues of high relevance to clinical practice. We surveyed psychiatrists and psychologists who reported serving as expert witnesses in court (n = 117) about their knowledge and beliefs about human memory. The results were compared to a sample of psychiatrists and psychologists who had never served as expert witnesses (n = 819). Contrary to our expectations, the professionals serving as expert witnesses did not outperform the practitioners who never served. A substantial minority of the respondents harbored scientifically unproven ideas of human memory on issues such as the memory of small children, repression of adult traumatic memories, and recovered traumatic childhood memories. We conclude that the expert witnesses are at risk of offering bad recommendations to the court in trials where reliability of eyewitness memory is at stake.

The entire article is here.

Thursday, December 18, 2014

Prosecutor questions ethics of Jodi Arias witness

By Megan Cassidy
The Arizona Republic via USA Today
Originally published November 26, 2014

Prosecutor Juan Martinez on Tuesday continued his steady drum of implications and accusations against a defense expert for Jodi Arias in an attempt to discredit favorable testimony for the convicted killer.

Psychologist L.C. Miccio-Fonseca examined the sexual relationship between Arias and victim Travis Alexander, Arias' sometimes lover.

The entire article is here.

Tuesday, August 14, 2012

“Hired guns,” “charlatans,” and their “voodoo psychobabble”: Case law references to various forms of perceived bias among mental health expert witnesses.

By Edens, John F.; Smith, Shannon Toney; Magyar, Melissa S.; Mullen, Kacy; Pitta, Amy; and Petrila, John
Psychological Services, Vol 9(3), Aug 2012, 259-271.

Abstract

Although in principle the legal system expects and professional ethics demand that expert witnesses be unbiased and objective in their forensic evaluations, anecdotal evidence suggests that accusations of financial bias, partisanship, and other forms of nonobjectivity are common. This descriptive survey of published legal cases expands on an earlier case law review (Mossman, 1999) attempting to encapsulate and summarize key issues concerning perceptions or allegations of bias in mental health expert witness testimony. Using a series of search terms reflecting various potential forms of accusatory bias, a total of 160 published civil and criminal court cases were identified in which 185 individuals (e.g., attorneys, trial and appellate judges, other witnesses) made one or more references to clinicians' alleged lack of neutrality. Allegations most typically involved describing the expert as having an opinion that was “for sale,” or as a partisan or advocate for one side, although aspersions also were made concerning “junk science” testimony and comparing mental health experts to mystics and sorcerers. Our results indicate that diverse forms of bias that go beyond financial motives are alleged against mental health experts by various players in the legal system. Means are discussed by which experts can attempt to reduce the impact of such allegations.

Here are two excerpts:
It should not be surprising that wholesale acceptance of mental health expertise as accurate and neutral is hardly the norm.

Clearly, some judges, attorneys, academics, and jurors view at least some mental health experts-if not the entire field-with a considerable degree of suspicion (Fradella, Fogarty, & O'Neill, 2003), if not overt distain and/or hostility.
and
In terms of putative sources of examiner bias, several forms have been suggested as potentially undermining examiner objectivity (e.g., Saks, 1990).

Perhaps the most pernicious is that opinions are for sale. It is commonly alleged that monetary incentives primarily (or completely) motivate the testimony offered by witnesses characterized as "'hired guns,' 'whores,' and 'prostitutes'" (Mossman, 1999, p. 414).

Although being for sale is frequently lodged as a criticism of expert testimony, allegations of other forms of bias may spring from perceptions that the expert has a particular personal, political, or scientific "ax to grind" in relation to a specific legal issue.

Evidence of advocacy for one's pet cause(s)--whether it is championing a particular examinee's case, the rights of fathers in child custody disputes, or a novel or controversial psychological syndrome (to name but a few possibilities)--may be justifiable grounds for questioning an examiner's objectivity and fairness as well.
For reprint requests, comments, or questions: John F. Edens, Department of Psychology, Texas A&M University, 4235 TAMU, College Station, TX 77843; Contact johnedens@tamu.edu

Thanks to Ken Pope for this information.

Sunday, May 27, 2012

Psychologist testifies on behalf of Catholic Diocese of Green Bay in fraud case

by Jim Collar
Gannett Wisconsin Media
http://www.greenbaypressgazzette.com/
Originally published May 18, 2012

A psychologist hired by the Catholic Diocese of Green Bay said two brothers who were sexually assaulted by a priest in 1978 suffered only minor trauma as a result.

Attorneys for the church began calling their witnesses Thursday in the Outagamie County civil lawsuit alleging fraud against the diocese. Brothers Todd and Troy Merryfield say the diocese knew former priest John Feeney sexually assaulted others before 1978 and fraudulently misrepresented his safety when assigning him to Freedom’s St. Nicholas Church.

In their 2008 civil lawsuit, the Merryfields cite “profound psychological damage” as a result of the assaults.

The entire story is here.

Thanks to Ken Pope for this lead.

Tuesday, November 8, 2011

Ohio Teacher Convicted of Sex with Students

Stacy Schuler
LEBANON, Ohio — A high school teacher was convicted Thursday of having sex with five students, some of them football players, after a judge rejected an insanity defense that argued the teens took advantage of her.

Stacy Schuler was sentenced to a total of four years in prison for the encounters with the Mason High School students at her home in Springboro in southwest Ohio in 2010. She can ask a judge to free her from prison after six months.

The 33-year-old Schuler, who could have faced decades in prison, cried as she was handcuffed and led out of the courtroom.

The five teens testified that Schuler, a health and gym teacher, had been drinking alcohol at the time of the encounters and was a willing participant who initiated much of the contact. The teens were about 17 at the time. The age of consent in Ohio is 16, but it's illegal for a teacher to have sex with a student.

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Testimony from a defense psychologist had suggested that Schuler's medical and physical ailments, combined with her vegan diet and use of alcohol and an antidepressant, helped impair her ability to tell right from wrong.

A psychologist for the prosecution rebutted that testimony, saying that the use of alcohol does not meet the state standard for an insanity defense and that willingly getting drunk is not a legal defense for a crime.

The entire story can be found here.

Sunday, August 21, 2011

Expert Witnesses on Trial


State legislators, physician organizations and courts are taking steps to ensure that the experts provide ethical and appropriate testimony.

By Alicia Gallegos, amednews staff.

The ideal goal of an expert witness during testimony is to be "an indifferent advocate for the truth," said neurosurgeon Jeffrey Segal, MD.

Too often, though, physicians make careers as such experts and use unethical tactics to sway jurors, said Dr. Segal, founder and CEO of Medical Justice, a company that sells medical liability insurance and provides legal resources to combat frivolous claims.

"Expert witnesses are the weak or strong link in any medical liability case," he said.

Lawmakers, physician organizations and courts are taking steps to combat unethical testimony by these so-called hired guns.

In recent years, several states have enacted tighter restrictions on expert witness testimony in medical negligence cases. At the same time, more medical associations and state medical boards have created standards for proper expert witness testimony and acted against experts who violate those rules.

Courts also are taking stronger stances against questionable experts. For example, high courts in Arizona and Maryland in 2009 upheld as constitutional state restrictions against expert witnesses.

"There is a growing awareness on the part of expert witnesses -- for both sides -- that what they are doing is not necessarily going to be kept behind closed doors, which definitely was not the case 10 years ago," said Louise B. Andrew, MD, an attorney and independent consultant for physicians on litigation and expert witness issues. "They can't just go and say whatever they are paid to say and expect that peers will never know."

Florida is the latest state to pass restrictions on the use of expert witnesses in medical liability cases. Under a law signed July 1 by the governor, out-of-state physicians offering expert testimony must apply for a certificate to testify. The state medical board can discipline them if they provide deceptive testimony.

"Before, there was absolutely no accountability for what [expert witnesses] did in Florida," said Jeff Scott, general counsel for the Florida Medical Assn. With the new law, "you can't come into Florida and testify falsely and hope to get away with it."

At least 30 states have similar expert witness laws. Some statutes, such as Arizona's, require witnesses to practice in the same specialty as the physician defendant. Others, like Maryland's, mandate that doctors spend a certain amount of time actively practicing medicine.

The whole story can be found here.