Ethics within Expert Testimony

who is Ralph Erdmann?

he was convicted of falsifying autopsy reports in 1992

expert and attorney have different goals - what is the experts goal?

represent scientific field and impartially inform courts of objectives

true/false - expect evidence is less susceptible to undoing influences/biased presentations than other of evidence

FALSE - they are very susceptive to influences and biases

• this influences occurs during the testimony when working with prosecutors

what is the quasi-collaborative relationship of expert witnesses and attorneys?

a situation of conflict resulting from adversarial process

• role conflict comes from a reduced job satisfaction and increased stress

what do experts serve as?

they serve as fact finders

attorneys are ____ and professionally obligated to be _____

advocates; biased

what happens when an expert witness is placed in role conflict?

they are requires to serve to many people with competing expectations

what are the expectations of role conflict of expert witnesses?

• side who retained them so wants help winning case

• court wants expert to inform and educate

• experts in professional field need to adhere to knowledge ands ethical code

• the other side wants to show expert is a liar or incompetent

what can experts not do?

they cannot say what they are not asked about and cannot provide what they want to speak about - answers have to be guided by questions

what are the 3 ethical principles an expert should uphold?

1. truth

2. justification

3. transparency

what is truth?

tell the truth, the whole truth, nothing but the truth

• expert should educate without a desired outcome

• the goal is to get the truth

what is justification?

conclusions and evaluations should be done to higher level of scientific methods

what is transparency?

pointing to how they made the decisions and are transparent in the process

i.e. listing consulted evidence, methods uses

what are the 5 components to science vs. law?

1. epistemology - logic vs. empiricism

2. large groups vs. isolated groups

3. nature of conclusions

4. cooperative vs. adversarial

5. methods of communication

science vs. law - which looks at logic vs. empiricism?

law looks at top-down logic case law approaches that lead to different conclusions; psychology observes/builds bottom-up after empiricism

science vs. law - which looks at large groups vs. isolated case?

psychology works in large samples of individuals to draw conclusions; law wants specific answers from defendant

science vs. law - how is nature of conclusions different between the two?

law looks for guilty/innocent definitive and dichotomous decisions; science looks at correlations/long-term things

science vs law - which looks at cooperative vs. adversarial?

science is open-ended, decision is back and forth cooperative truth-seeking process; courts look at winning, adversarial process where defence is put against crown/prosecution

science vs. law - how is methods of communication between the two?

science communicates with writing research papers, ideas, limitations etc; court can only ask/answer specific questions

what are the 3 differences between psych and law?

1. goals - truth vs. justice

2. methods - data vs. rulings

3. styles of inquiry - objectivity vs. advocacy

goals: truth vs justice - what goal falls under psych and law?

goals of psych is getting the truth; lawyers only look for justice/winning

methods: data vs. rulings - what goal falls under psych and law?

psych gathers data/analyzes stats; legal system looks at case law/previous rulings

styles of inquiry: objectivity vs. advocacy- what goal falls under psych and law?

psychs focused on objective/forming educative role; legal professionals defend client/prosecute them with goal to trick defences advocate

culture clash psychology - what factors fall under it?

• descriptive - so describing what they do

• explain behaviour - explain why people do what they do

• probabilistic - how we view behaviour

• emphasizes groups - focuses on peoples behaviour in general

• future oriented - always looking for improved research

• objectivity - being neutral, unbiased, letting data speak for itself

culture clash law - what factors fall under it?

• prescriptive - telling goal of law is telling people how to behave

• regulates behaviour - through punishment or reward

• unambiguous- attempts to make guilty/innocent decision

• emphasizes individuals - only care about person on trial; what they do/don’t do

• past oriented - looks backwards for precedent

• advocacy in adversarial system - structures set up to advocate client

what are some ethical challenges?

• expert within selection

• influence over testimony

• quasi-collaborative relationships

• future contingencies

• testifying areas outside expertise

• clinical considerations

what is expert witness selection?

searching for expert to support case

• filters out experts that wont testify

what is influence over testimony?

filtering of info

• hiring an expert and learn what shaped their opinion, selectively filter what the next one receives

• can backfire during cross contamination

what is quasi-collaborative Working Relationship?

more subtle but likely common way experts opinions get influenced

• may feel part of team - not good

what are future contingencies?

reaching conclusions/making recommendations suitable to attorneys position results in continued work

how do we testify in areas outside expertise?

asking expert to provide opinions on topics not of their expertise

i.e. asking cognitive or social psychologists to comment on something clinical

• can harm process

what are clinical considerations?

remembering that if conducting assessments they are not there in therapeutic capacity

• results could be harmful to interests

• refrain from using the words client and patient

what are adversarial allegiances?

systematic bias of expert witness towards opinions./determinations of party retaining them

• better to accept we are all susceptible to biases then deny it

what is the Murrie et al (2008) study?

pioneering study in adversarial allegiance

• identified 23 real cases where risk assessment had been conducted by 2 experts - prosecutions and defence using PCL-R

• used sexual offender civil commitment trials

• found differences between two sides depending on if they’re hired for prosecution or defence

• results raised concerns for forensic evaluators for influence of PCL-R scores

what is the Murrie et al. (2013) study?

how do we avoid ethical pitfalls ?

1. understand differences between psych and law

2. be as knowledgeable as possible

3. learn all relevant facts

4. educate retaining attorney

5. preprare for testimony

6. understand own motives and biases

what are potential sanctions ?

• things lawyers/experts can do vs. larger system based steps minimizing bias/unethical behaviours

• charging experts with prejury is rare

• blacklisting experts misinterpreting fields/present unjustified opinions

• sanctions by professional associations or workplaces