Expert Testimony Final

What is the difference between sexual assault and sexual harassment?

Sexual assault is a criminal issue while sexual harassment is an issue related to employment law and employers liabilities

What percentage of women experience sexual harassment in their lifetime

One out of four women

Sexual harassment: “ unwelcome, sexual advances request for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when…(3)

1. Submission to that sexual conduct is explicitly or implicitly a term or condition of employment

2. Submission or rejection of that sexual conduct is the basis of employment decisions affecting such individuals or

3. Search conduct has the purpose or effect of unreasonably interfering with an individuals work performance creating an intimidating, hostile or offensive work environment

What are the two types of sexual harassment?

1. Quid pro quo

2. Abuse of power related to sexual advances or favours

Quid pro quo

Something for something this for that

An employee must submit to unwanted sexual remarks or conduct as some part of their employment

What is the most clearcut form of sexual harassment?

Abuse of power related to sexual advances or favours

What is the criteria for establishing the occurrence of sexual harassment? (3)

1. Unwelcome

2. Discrimination

3. Caused harm

What is the primary sign of establishing unwelcomeness?

Overt rejection in the filing of a complaint

Plaintiff expert testimony in sexual harassment cases

Social psychology of victim, blaming and stereotyping limitations of definitive arguments that plaintiffs behaviour was welcoming research on men falsely reading sexual interest

Defence expert testimony in sexual harassment cases

Plaintiffs past welcomeness to sexual activity, mental health manner of speech and dress (depending on probative value)

May argue past abuse, led to hypersensitivity to sexual harassment (not empirically supported)

They argue, lack of generalizability of the research, methodological, weak points, and external validity

What are the different aspects of discrimination in sexual harassment cases

Organizational climate

Organizational leadership

Gender composition of work group

Sexual harassment, policies, practices, and procedures

With caused harm for sexual harassment cases, what are the two things that courts must grapple with?

1. The level of harm necessary to meet the legal threshold

2. How (and from whose perspective) to assess the harm

How is harm caused generally judged? In sexual harassment cases.

Generally judged on whether the victim belief it was severe and persuasive or a reasonable person/reasonable women standard

What are three areas that experts might evaluate on harm caused in a sexual harassment case?

1. Psychological: evaluation by the expert depression, anxiety, social withdrawal, PTSD

2. Physiological: headaches, insomnia, high blood pressure, etc

3. Work related: loss of job, promotion, seniority, time, and income

What are the challenges with assessing/demonstrating harm caused in a sexual harassment case?

1. Seeking damages, often hinges on demonstrating that the harm would have not otherwise have been suffered if not for the harassment

2. Experts asked to try to separate the harms related to their harassment from other harms

3. Pre-existing conditions still irrelevant

In relation to sexual harassment cases, what are the well established findings?

1. The negative effects of gender stereotyping in the workplace

2. Men and women perceive sexual harassment differently

3. Not everyone complains in fact, most people never do

4. Trauma often results from experiencing sexual harassment

In regards to sexual harassment cases, what are controversial issues/findings

1. Problems with measurement/definitions of sexual harassment

2. Concerns about external validity

3. Problems with assessing mental health/sequela of trauma

4. Lack of empirical research on the efficiency of sexual harassment, policies, trainings, and procedures

5. Lack of research attention to those who have experienced sexual harassment

What was the first case where expert testimony was used in court for battered women’s syndrome?

Lavallée v. Regina 1990

Battered women’s syndrome, usually put forward as a part of a _______ claim, though often mistaken as a _______ defence

Battered women’s syndrome is usually put forward as a part of a self-defence claim, though often mistaken as a mental disorder defence

What are the three aspects that self-defence generally requires to be used as a claim?

1. Inactive/imminent threat

2. No easy means of escape

3. The force used was proportionate to the threat

What are three reasons why an expert might testify that self defence looks a bit different in the context of battered women syndrome

1. The dynamics of the abusive relationship

2. Strength disparity

3. Fear of future violence

Domestic violence

Any violence that occurs between family members

Intimate partner violence

Is any violence occurring between intimate partners, whether they are living together or separated

What are some explanations for intimate partner violence?

1. Patriarchy

2. Social learning theory

3. Ecological systems

what are the four parts of ecological systems relating to intimate partner violence?

1. Macro system: broad set of societal and cultural beliefs, norms and attitudes. The violence is OK or is at least tolerated.

2. Ecosystem: social structures that connect the individual to their wider society

3. Microsystem: immediate environment, in which IPV occurs

4. Ontogenic factors: psychological and biological features of the individual

What are the three phases of the repeating cycle of battered women syndrome

1. Phase 1 tension building: minor abusive incident, the build to the second face

2. Phase 2 accurate battering: shortest most harm is likely to occur

3. phase 3 period of loving contrition (honeymoon period): abuser professor, his love promises to never harm again

Learned helplessness

Battered women becomes psychologically, trapped in the abusive relationship

A reason for why a woman might stay in this situation: it’s happened so often that they don’t see a way out and don’t see a way of escape so that they just accept it and accept that they are stuck in this situation

What are the three criteria that battered women syndrome shares with PTSD?

1. Intrusive thoughts

2. Avoidance symptoms

3. Heighten arousal

what percentage of homicides in North America are committed by women and who are the majority of their victims

10 to 15% of homicides in North America are committed by women in the majority of the victims are intimate partners

__% of battered women tried to leave their partners __% eventually returned

42% of battered women try to leave their partners 70% eventually returned

According to Anderson et al. (2003) what are some of the reasons why women return after suffering from abuse?

1. Partner promised to change 71%

2. Financial dependence 46%

3. Partner needed them 36%

4. Would be homeless 29%

5. Threatened 26%

6. For children 19%

7. No shelter space 5%

What are some of the criticisms of battered women syndrome?

1. Incorrectly portrays those with battered women syndrome as mentally ill

2. Based in gender stereotypes

3. Misapplication of learned helplessness

4. Psychological/internal experiences versus social reality

5. Ignores differences between women

What are the steps an expert Witness might go through when assessing battered women syndrome

1. Determined presence of intimate partner violence

2. Assess symptoms of BWS

3. Determine state of mind at time of crime

4. Report findings

5. Records review interview with the defendant interview interviews with others psychological testing

Why might prosecutors sometimes argue that testimony on battered women syndrome shouldn’t be admissible under Daubert

They claim that BWS itself does not have a firm empirical basis, and therefore lack validity and reliability

What are some things an expert might testify about for the defence in a battered women syndrome case

1. Imminent threat: expert testimony will need to offer some explanation on why the women believed she was in imminent danger and escape was not a viable option

2. Avenues of escape: maybe utility in the expert witness, emphasizing the women’s circumstances and buried to escape

3. Proportionality: may need to explain that the battered woman was less physically equipped to defend herself so used deadly force

What does the research show on the legal outcomes of expert testimony on BWS?

1. More not guilty, verdict, and a reduction in verdict severity

2. Educative function not working that well

3. Effectiveness may vary, depending on how consistent the defendants behaviour is with BWS links to the specific case and based on deliberation

4. May generate sympathy for the defendant

5. Can backfire as well

What do experts typically testify on in child abuse cases

Generally testifying on children’s ability to recount prior experiences, and some of the factors that might impact a child of memory and the accuracy of that memory

Social framework evidence

Offered to help provide the trial of fact, with knowledge, derived from scientific research that gives an inappropriate context for understanding the specific evidence in a given case

In child abuse cases, who is the expert testimony initially brought by

Initially brought by the prosecution/crown

Why my expert testimony be initially brought by the prosecutors /crown

To try and bolster a child’s credibility by sort of rebooting or pushing against certain misconceptions about children that might have

Why might the defence hire an expert witness to give testimony on a child abuse case

To help evaluate the credibility of children because they might have been interviewed in a suggestive manner

To challenge children’s statements

What are the two sides of the Debate concerning expert testimony on children’s memory and suggestibility

1. Evidence gleaned from the studies is unnecessary people already believe that young children are prone to false reports and expert testimony, unfairly Stokes, the scepticism of jurors who already distressed children’s claims

2. Psychological research provides important insights that go beyond jurors conventional wisdom regarding children suggestibility

In a study conducted to find out do jurors know what isn’t so about child witnesses when asked about the child’s age at event what % of actual jurors agreed that if a child has been repeatedly and painfully sexual abused as an infant, they can remember it

64% of actual jurors agreed

In a study conducted to find out do jurors know what isn’t so about child witnesses when asked a question about the age at interview what % of actual jurors agreed that children cannot remember events well enough to be reliable witnesses in court

34% of actual jurors agreed

42% of actual jurors agreed when the child is described as a four-year-old

What might expert testimony be able to reduce in regards to childrens testimony in child abuse cases

Expert testimony may be able to reduce warranted scepticism and naïve trust in children’s eyewitness testimony

Expert testimony on ________ are often used to assess the credibility of sexual abuse allegations

Expert testimony on children’s disclosure patterns are often used to assess credibility of sexual abuse allegations

Child, sexual abuse accommodation syndrome

An idea of how children are supposedly going to recall and the pattern you’re expected to see for someone who was abused as a child

1. Secrecy

2. Helplessness

3. Entrapment and accommodation

4. Delayed conflicted and unconvincing disclosures

5. Retraction

Is child sexual abuse accommodation syndrome, empirically supported?

There is no empirical evidence, supporting child sexual abuse accommodation syndrome

Where is the death penalty considered a violation of basic human rights and abolished?

Canada Mexico, Australia, New Zealand, all western European countries, South Africa, Africa, most of central and South America

How many states does the federal government and military authorize the use of the death penalty?

27. States.

______ now is the only crime punishable by death in the US

Aggravated murder now is the only crime punishable by death in the US

Executions are relatively rare less than __% of murderers (between 2000 and 2010: ___ people were executed)

Executions are relatively rare less than 1% of murderers (between 2000 and 2010: 570 people were executed)

During Voir Dire it must be determined that the jury is _____

During voir dire it must be determined that the jury is death qualified (willing to vote for the death penalty)

What percentage of jurors are excluded by not being deaf qualified

30 to 40% of potential jurors are excluded because they’re not willing to vote for the death penalty

What are some facts about death qualified juries

1. Death qualified juries are more conviction, prone, and more receptive to aggravating factors/less receptive to mitigating factors

2. Capital juries are less representative of the larger community and include fewer women, African-Americans, liberals, and Catholics

3. The qualification process may lead to in fear that everyone expects a conviction/death sentence

Since 1990 ___ people were wrongfully convicted of murder and sentenced to death; ___ of those people were executed

Since 1990, 416 people were wrongfully convicted of murder in sentence to death 23 were executed

Since 1973 how many people have been released from death row with evidence of their innocence

Since 1973, 191 people have been released from death row with evidence of their innocence

What limitations have been placed on the death penalty?

Atkins v. Virginia 2002: cannot execute mentally retarded prisoners.

Ring v. Arizona 2002: only juries can decide the death sentence, not judges

Roper v. Simmons 2005: no death penalty for juveniles.

Coker v. Georgia 1977/ Kennedy v. Louisiana 2008: no death penalty for rapists of adults or children.

In a 1973 study how many times more likely were black men convicted of raping white women to receive a death sentence than any other racial combination

Black men convicted of raping white women were 18 times more likely to receive a death sentence than any other racial combination

Black defendants are more likely than white defendants to … (4)

1. Be charged with capital murder

2. Be convicted of capital murder

3. be sentence to death once convicted

4. Actually be executed

What are three statistics regarding the death penalty that have to do with the race of the victim?

1. A white victim is twice as likely to seek death penalty than a black victim

2. Black people who kill white people are four times more likely to be charged with murder than Black people who kill Black people

3. Those convicted of killing white people were three times more likely to be sentenced to death as convicted of killing Black people and four times more likely than those can convicted of killing Latinx people

What does looking death worthy refer to in a capital mitigation case

in a study conducted by eberhardt et al., 2006 they found that in cases involving a white victim the more stereotypically black defendant is perceived to be the more likely that person is sentenced to death

Why should Mitigation experts start early? (before the penalty phase) (4)

1. To establish working relationship with attorneys

2. To establish rapport with the defendant

3. To convince prosecution not to seek the death penalty

4. It is an extremely time-consuming analysis/report

What is aggravating factors and who puts them forward in a Mitigation case

Aggravating factors increase the wrongfulness of a defendant action or the harmful impact of the crime

The prosecutor puts forward aggravating factors in a capital mitigation case

What are mitigating factors and who puts forward them in a capital mitigation case?

Mitigating factors reduce the defendants blameworthiness and make execution less appropriate (but don’t justify or excuse the crime)

The defence puts forward mitigating factors

Is every defendant entitled to be considered as an individual in facing capital punishment?

Yes, every defendant is entitled to be considered as an individual and facing capital punishment

What happens when there is failure to investigate mitigating circumstances? In a Mitigation case.

Failure to investigate mitigating circumstances can result in an appeal on the ground of ineffective counsel

What are the two key areas of testimony when mounting a mitigation defense?

1. Development life trajectory

2. Risk (lack of) for future violence

What are the types of experts that might testify in a capital trial process?

1. A psychologist (clinical developmental etc.)

2. psychiatrist

3. Neurologist

What is brofenbrenner’s Bioecological model (capital mitigation)

The child’s environment as composed of a series of nested structures with every level having an impact on development

1. The microsystem: the immediate by directional environment that a person experiences

2. The mesosystem: encompasses the connections among various micro systems

3. The exosystem: consist of environmental settings that the person does not experience directly, but that can affect the person indirectly

4. The macrosystem: the larger, cultural context within which the other systems are embedded

5. The chronosystem: consist of historical changes that influence other systems

what might Mitigation expert testimony include

1. Risk factors

2. Protective factors

3. Resiliency

4. Vulnerability

What are risk factors and are they cumulative? (Capital mitigation)

Risk factors are any life event or biological factor that when triggered negatively impacts the individual

Risk factors are cumulative: outcomes tend to worsen as the number of risk factors increases

What are protective factors and are they cumulative? (Capital mitigation)

Risk factors are factors that are known to decrease the risk of developing dysfunctional or antisocial behavior.

Protective factors are cumulative and not in the defendant control

What issue do expert witnesses face regarding resistance and vulnerability and capital mitigation cases

Expert witnesses face the issue of how to provide an explanation for human behaviour without making it sound like an excuse

What is resilience (capital mitigation)

Dynamic developmental process, reflecting evidence of adaptation, despite significant life adversity

What is the idea behind Capital mitigation expert testimony

Within the framework of the ecological model of human development, the capital defendant becomes more than just a person with a horrendous upbringing who committed a heinous crime; thr capital defendant becomes a human being.

What is the expert witness process in a capital mitigation case

1. Review records

2. Interview defendant (as an evaluator, not a therapist)

3. Interview others (family, friends employers for more teachers clergy, etc)

4. Compile report (humanize the defendant — explain the crime in the context of their life)

According to research on capital mitigation testimony, what are some strong aggravators?

1. A particularly brutal murder

2. Murder of a child

3. Lack of remorse

4. Risk assessment showing the defendant is a continued danger

According to research on capital mitigation testimony what are some strong mitigators

1. Youthfulness

2. Cognitive defects

3. Extreme emotional distress

4. Committing the crime under coercion or substance use disorder

5. Schizophrenia/ID diagnosis

What are some factors that may affect how jurors view capital mitigation testimony?

1. Viewing the expert witness as a biased paid advocate since they are hired by the defence

2. Lack of belief in the science of predicting human behaviour

3. The extent to which experts connect the science to the case at hand

What are some misunderstandings that yours may have about the penalty phase instructions in a capital mitigation case

1. You may fail to understand the concepts of aggravation and mitigation

2. Failure to understand the full range of mitigating factors

3. May think that any aggravating factor means automatic vote for death

4. Mistakenly believe that if they don’t vote for death, the person can be paroled

5. Racial bias can creep in without clear instructions

What are some potential changes to the legal system that can be made in light of research on mitigation

1. Defence teams to have in-house capital mitigation specialist

2. Capital mitigation specialist should have training in developmental psychology

3. Standards of practice/guidelines

4. Quality control re what information is admitted and who presents it

5. Improve clarity of juror instructions

What are some basics of risk assessment?

1. Prediction of an offenders likelihood of reoffending (I.e. Recidivism)

2. Relevant to civil commitment, bail sentencing, parole, capital mitigation

3. May work for either side, court appointed or outside the adversarial court context (e.g., correctional services)

4. Risk assessment versus threat assessment

Static risk factors

Risk factors that cannot be changed

Historical risk factors

Events which have been experienced in the past (static risk factors)

Clinical risk factors

Are those which are types of mental disorders or symptoms of mental disorders (Can be both static and dynamic)

Dynamic risk factors

Risk factors which fluctuate overtime and are subject to change

Dispositional risk factors

Are those which reflect the individual individuals traits, tendencies, and styles

Contextual/situational risk factors

Are those which relate to some aspect of the current environment

What is the history of risk assessment?

1. First generation (1940s to 1980s): unguided clinical judgement

2. Second generation: static actuarial measures VRAG, static-99R (only look at static risk factors)

3. Third generation: was more flexible with that static and dynamic factors and covered a number of areas

4. Fourth generation: included case management, tells you about an individuals risk but also makes recommendations on areas to target with rehab

For risk assessment, what are the two main types of information gathering?

1. Case file review

2. A semi structured interview

What are some of the benefits of using a risk assessment tool

1. More accurate than unguided, clinical judgement

2. Help properly classify low risk offenders

3. Provide judges with info about modifiable dynamic risk factors

4. Enable more strategic decision decisions, and reduce incarceration

5. Help reduce racial, biases, and decisions

What is one of the most commonly used risk assessment tools

The psychopathy checklist revived (PCL-R)

What three things is the level of service case management inventory (LSCMI) based on

1. Criminogenic risks

2. Criminogenic needs

3. Responsivity

What are the two things that the level of service case management inventory (LSCMI) can be used to predict

1. Dangerousness

2. What sort of rehab the defendant will need to reduce the likelihood of recidivism

What risk assessment tool has an approximate 75% accuracy in predicting recidivism

The violent risk appraisal guide (V-RAG)

The violent risk appraisal guide (V-RAG)

Actuarial tool meant specifically for predicting violent recidivism

Shown to be valid at predicting future violence across genders a wide range of countries and cultures and for several types of violence

12 items with scores from -26 to +38

What are the problems with actuarial instruments (risk assessment)

1. generalizability: predicting dangerousness and different population

2. Failure to incorporate rare but potentially important risk factors

3. Failure to include dynamic risk factors

4. Failure to include protective factors

What is the structured professional judgment HRC-20

a non-algorithmic non-numeric decision process that consists of 20 items written into three domains

1. Historical (10)

2. Clinical (5)

3. Risk management (5)

What percentage of sexual offenders recidivate

Only about 15% of sexual offenders recidivate