What is the role of a Psychology Expert Witness?

The· role of a Psychology Expert Witness is to provide a court or tribunal with

specialist information which legal professionals would not be able to supply. It is
important to make it clear that the duty of an Expert Witness Psychologist is to t he
Court and not the instructing party(ies) i.e. the solicitor(s) or client(s). In addition to
individual Expert Witness Psychologist the definition was extended to include
"Expert Teams", as part of the 2010 extension to the Civil Procedure rules. This was
in recognition of fact that some cases may require teams of professionals from
different disciplines to work jointly to produce a medico-legal report.

Psychology Expert Witnesses, like all other type of Expert Witness, are different to
"ordinary witnesses" as Expert Witnesses are permitted to provide an opinion in a
case as opposed to simply stating the facts. To enable the Court to assess the
reasons behind the Expert Witness Psychologist's opinions they must supply the
Court with the necessary information that lead them to those conclusions. In
addition to this, the opinion of the Psychology Expert Witness must be both
relevant, as deemed by the "probative value" of that evidence, and admissible.

It is unusual for Expert Witness Psychologists to give an opinion about how a

person without any mental health difficulties would react in certain situations or
about the truthfulness of a person's statement or evidence. However, under certain
circumstances, such as those involving possible malingering or when video and
interview evidence given by a person conflict or matters concerning the reliability
or veracity of a child's testimony. Under these circumstances a Psychology Expert
Witness can provide an opinion based upon best practice for those situations such
as the use of evidence based and standardised psychometric tests.

One importanJ distinction to draw is that Expert Witness Psychologists are not
allowed to give an opinion on a question of fact in the case, that is being considered
by the judge or jury e.g. a Psychology Expert Witness in civil family cases cannot
make suggestions as to the best placement of a child or confirm if an alleged case of
abuse or neglect took place, as this is for the judge to decide.

A Psycl)blogy Expert Witness is a qualified Psychologist who has become an Expert

in thyit field by undertaking spec!alist training, additional study or gained extensive
---eX'perience within a particular area. Examples of suitable criteria for validating the
competence of a Psychology Expert Witness may include:

• Relevant graduate and/or post-graduate qualifications specific to the

client I case in question
 • Several years of relevant professional experience after initial
qualification
• Articles having been published in recognised journals or publications
relevant to the issues in hand
• Recent professional experience in the specialist area required for the
case

Whilst many professional titles within the field of Psychology are legally protected
e.g. Clinical Psychologist, the title of Psychology Expert Witness is not as it is not a
formally recognised qualification or profession under the regulators or bodies for
Psychologists. It is therefore imperative that any solicitor planning to instruct an
Expert Witness Psychologist first establishes their qualifications and experience as
well as their registration with any relevant professional bodies, such as the Health
and Care Professions Council (HCPC) or British Psychological Society (BPS), as they
should be registered with one or more of these.
Expert testimony is provided by an expert witness or professional witness is a witness,
who by virtue of education, training, skill, or experience, is believed to have knowledge in a
particular subject beyond that of the average person, sufficient that others may officially
(and legally) rely upon the witness's specialized (scientific, techni~I or other) opinion about
an evidence or fact issue within the scope of their expertise, referred to as the expert
opinion, as an assistance to the fact-finder.w Expert witnesses may also deliver expert
evidence about facts from the domain of their expertise.121 At times, their testimony may be
rebutted with a learned treatise, sometimes to the detriment of their reputations.

Typically, experts are relied on for opinions on severity of injury, degree of insanity,
cause of failure in a machine or other device, loss of earnings, care costs, and the
like. In an intellectual-property case, an expert may be shown two music scores,
book texts, or circuit boards and asked to ascertain their degree of similarity.
The tribunal itself, or the judge, can in some systems call upon experts to
technically evaluate a certain fact or action, in order to provide the court with a
complete knowledge on the fact/action it is judging. The expertise has the legal
value of an acquisition of data. The results of these experts are then compared to
those by the experts of the parties.
The expert has a heavy responsibility, especially in penal trials, and perjury by an
expert is a severely punished crime in most countries. The use of expert witnesses
is sometimes criticized in the United States because in civil trials, they are often
used by both sides to advocate differing positions, and it is left up to
a jury of laymen to decide which expert witness to believe. Sometimes one side has
utilized an expert witness to provide fraudulent or junk science testimony in order to
convince a jury. Such experts are commonly disparaged as "hired guns."
Duties of experts
In England and Wales, under the Civil Procedure Rules 1998 (CPR), an expert
witness is required to be independent and address his or her report to the Court. A
 witness may be jointly instructed by both sides if the parties agree to this, especially
in cases where the liability is relatively small.
Under the CPR, expert witnesses are usually instructed to produce a joint statement
detailing points of agreement and disagreement to assist the court or tribunal. The
meeting is held quite independently of instructing lawyers, and often assists in
resolution of a case, especially if the experts review and modify their opinions.
When this happens, substantial trial costs can be saved when the parties to a
dispute agree to a settlement. In most systems, the trial (or the procedure) can be
suspended in order to allow the experts to study the case and produce their results.
More frequently, meetings of experts occur before trial.
History
The earliest known use of an expert witness in English law came in 1782, when a
court that was hearing litigation relating to the silting-up of Wells harbour
in Norfolk accepted evidence from a leading civil engineer, John Smeaton. This
decision by the court to accept Smeaton's evidence is widely cited as the root of
modem rules on expert evidence. However, it was still such an unusual feature in
court that in 1957 in the Old Bailey, Lord Justice Patrick Devlin could describe the
case of suspected serial killer Dr John Bodkin Adams thus: "It is a most curious
situation, perhaps unique in these courts, that the act of murder has to be proved
by expert evidence. "131

On the other hand, expert evidence is often the most important component of many
civil and criminal cases today. Fingerprint examination, blood analysis and DNA
fingerprinting are common kinds of expert evidence heard in serious criminal cases.
In civil cases, the work of accident analysis, forensic engineers, and forensic
accountants is usually important, the latter to assess damages and costs in long
and complex cases. Intellectual property and medical negligence cases are typical
examples
Non-testifying experts
In the U.S., a party can hire experts to help him/her evaluate the case. For example,
a car maker may hire an experienced mechanic to decide if its cars were built to
specification. This kind of expert opinion will be protected from discovery. If the
expert finds something that is against its client, the opposite party will not know it.
This privilege is similar to the work product protected by the attorney/client
privilege.
Testifying experts
If the witness needs to testify in court, the privilege is no longer protected. The
expert witness's identity and nearly all documents used to prepare the testimony
will become discoverable. Usually an experienced lawyer will advise the expert not
to take notes on documents because all of the notes will be available to the other
party.

An expert testifying in court must satisfy the requirements of Fed. R. Evid.

702.[41 Generally, under Rule 702, an expert is a person with "scientific, technical, or
other specialized knowledge" who can "assist the trier of fact," which is typically a
 jury. A qualified expert may testify "in the form of an opinion or otherwise" so long
as: "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case."
Although experts can testify in any case in which their expertise is relevant, criminal
cases are more likely to use forensic scientists or forensic psychologists, whereas
civil cases, such as personal injury, may use forensic engineers, forensic
accountants, employment consultants or care experts. Senior physicians,
usually consultants or their equivalents, are frequently used in both the civil and
criminal courts.
The Federal Court of Australia has issued guidelines for experts appearing in
Australia courts151. This covers the format of the expert's written testimony as well as
their behaviour in court. Similar procedures apply in non-court forums, such as the
Australian Human Rights and Equal Opportunity Commission

Main cases
• ~ - "', • .• . ~ • '.~: . •~' • ~,o/'.;.~~,I~~ •'7;f(!f?~%:$)-'.f'i~~-~·:c<~~,:•~\?~.cJ.".:':·--'fi;~;"~.·;. · '! ._. ~ !:r"~--,'l ~ r •,. 1}(9", : ( ~

The court cases discusseq 60 ·tt;\is page wereJnecessar:y,:.step_ s-.for' t.he' fo,rmation and recognition of
forensicpsycfi9lo~y~' •-'.>• · _, .- ,\ \.:.~;' · ·-s.\ ,_,. ····- · ,
· '· "! , •• ..

State Vs. Driver 1921 ' .. ' --·· ' .

\: . -· .· _·_. kz_,,:;), /·{·. ':<.L,,,1· 1 ;.-:,:i'i . · !'::' ,'•, _. . - ·
The fir;st published case in which .a,· psychologist .was · an •expert witne'ss was the case of State_v.
Driver ln 1921.)t·is important to note however that thi? •was not tt,e first time a.psychologist had
t>een an ·e xpert witness. It is impossible to say when the first case was because of a lack of
~vailable records. .l)nfortllnately /or the worfa : of psychology the psychologist's testimony was
µltimately rejected in this case. Soon, though , in the 1940's psycholog(sts .beJng used as. expert'.
witiu~sses was increasing. Tt,is is not tQi 5aY t~at they were-,.i"ei:!diiy a,ccepte"i::I though, there ~as stili7
a large amount of doubt in .the legal community to the application of psychology·in the courtroom ..,,
. , , . . ' ,l
,,
1
Frye 'Vs the U,r1ited States 1923
1
Frye ver:sus the United States set the standard for the acceptance of expert testimony in federal
f.OUrts. The cas~ was heard in 19;23 c;1nd the outcome '1as what is known today as the FryeJ
,Standard: '
· ' ·
l,
p ,ust when a scientific principle or discovery crosses the line between the· experimental and
~~monstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of
t he principle must be recognized, and while courts will go a.long way jn admitting expert testimony
deduced from a well-recognized scientific principle or discov(,'!ry, the ,thing from which the
deduction is made must be sufficiently established ' to have gained general• acceptance in the;
particular field in which it_belongs."- Van Orsdel, Associate Justice
1. 1'

[his case was a huge step in the effort to incorporate psychology and law.
J
'r
P~ople ¥s. Hawtflrone 1940
In Yhe- case of the People Vs. Hawthrohe, tried 'in Mlchigan·.·n,e case was about ·a tfiari--=:-w'hf halj'
k1lled his wife, and was pleading not guilty ,by re~son of insanity._The trail court re~used to a ow :
psychologist with a Phi'.> to be an expert-witness in the case . This Issue ended Up in th e Su~;e~e
Court of Michigan where it -was determined that the trail court s_h o~ld have _accepte t
psychologist as an expert witness. They ultimately ruled that the cn~ena for being a; ex pf rt
witness should not be based on whether or not the person had a_medical . degree. The ~ses _or
qualifying an expert witness should be their depth of knowledge in a particular area . T~fy 1s r~in~
created some controversy however in that many people believe that in order to t~st1 a ou
something like insanity, which they considered to be a disease, a person needed a medical degree.

'Hidden Vs Mutual Life Insurance Company Co. 1954

This cases is very similar to the People Vs. Hawthrone, the main difference being that this is a civil
case. The plaintiff was suing his insurance company for benefits. He cl~imed t~at they should ?ei
giving him disability benefits because he had a disabling nervous condition w~ic_h prevented him
from having a steady source of income because he could not work: A cll~1_cal psych0 0 ~ 1st, !
performed projective testing on the man, and testified in court_ab~~t his cond1t1on. I~ tes_tifying
the psychologist stated that, the man qualified to be given the d1s_ab11Jty ?enefits. At this point t~e
defense objected, and the judge told the j ury to disregard the entire testimony of the psychol_o~ist
on the basis that he was stating his opiniOJ'1. Later in a court of appeals it was ruled that t_h e clinical
psychologist's testimony should have been admissible in the trial.and that the psychologist was an
expert witness.

Jenkins Vs United St.ates 1962

The court of appeals in D.C.. ruled in support to psycho)ogists being used as expert witn~sses when
mental illnesses are concerned. The cou_rt ~~s very divided on this ruling . None the less, their
ruling became the dominate one concerning psychologists as expert witnesses in the matter of
mental illness. Following this example many other courts, federal and_local, began t o accept the
use of psychologists more
.wi.l lingly. .•·
..,... ~ ....-i.-~~~ ~/' .... :a.:.:_._: ~·- .-. 1,~{.5;. ~-~,.:~~ i.>..·:.-1:,c j.:..: fJ , ~~. . ,-~ -~-~'......~· ;.,__,f~ .' :-~~~:.c

t is generally believed that American psychologists have served as expert witnesses

since the early 1920s (Comment, 1979), but, like their European counterparts, they
consulted with lawyers and the courts, perhaps particularly the civil courts, before
that time. Included in this latter category are the juvenile courts, which were a hybrid
of the civil and the criminal, dealing with matters of both child protection and
delinquency. Psychological consultation with juvenile courts was common from their
inception in 1899 (Brigham & Grisso, 2003). Consultation with and testimony in
criminal courts was much less common, as we discuss shortly.

According to Rogers (1910, 1918), the results of experimental research on visual

perception were routinely accepted in trademark infringement cases. In Coca-Cola
Company v. Chero-Cola Company (1921), for example, an experimental
psychologist was asked whether the trademarks used by the two companies were
so similar as to be likely to cause confusion in the public mind and ultimately
deceive the consumer. This was apparently considered a "safe" undertaking, as the
psychologists were not infringing on the territory of the "medical
experts"-physicians and psychiatrists- who routinely testified on matters of
criminal responsibility. As Louisell (1955) noted, however, because trial court
records are generally unavailable and only appellate decisions are published, the
testimony of psychologists, particularly in civil cases, may have been less rare than
the paucity of documentation would indicate. We do know that psychological
testimony was almost inevitably rejected in criminal cases involving the defendant's
mental state. "As a general rule, only medical men-that is, persons licensed by law
to practice the profession of medicine-can testify as experts on the question of
insanity; and the propriety of this general limitation is too patent to permit
discussion" (Odom v. State, 1911; cited in Comment, 1979, fn. 14).

The first published case in which an American psychologist qualified as an expert

appears to be State v. Driver in 1921. The occasion was only a partial victory for
forensic psychology, however. A West Virginia trial court accepted the chief
psychologist of the State Bureau of Juvenile Research as an expert on the matter of
juvenile delinquency. However, it rejected his testimony, based on psychological
test data, that a 12-year-old alleged victim of an attempted rape was a "moron" (in
retrospect, an unfortunate term coined by Henry H. Goddard, who is discussed
later) and could not be presumptively believed. In agreeing with the trial court, the
West Virginia Supreme Court noted, "It is yet to be demonstrated that psychological
and medical tests are practical, and will detect the lie on the witness stand" (State v.
Driver, p. 488). Although some commentators interpreted Driver as a major loss for
psychologists wishing to achieve status as expert witnesses, Louisell (1955) noted
that the decision was not a rejection of psychologists per se, only of the particular
evidence offered by one psychologist.

Nevertheless, it was not until much later, in the 1940s and 1950s, that psychologists
testified in courts of law on a regular basis, at least in some jurisdictions. They
offered opinions and presented data relevant to subjects as diverse as the influence
of pretrial publicity on potential witnesses and juries, the effects of pornography on
adolescents, the effect of certain educational practices on children, and the likely
influence of advertisements on consumers (Greenberg, 1956; Loh, 1981; Louisell,
1955). This is not to say that there was widespread acceptance of the idea that
psychologists deserved a niche in the courtroom. Resistance to the idea, or at best
a cautious approach, consistently characterized much of the legal literature
(Comment, 1979).

In the early 1940s and the post-World War II era, appellate courts also began to
hand down rulings that allowed psychologists to offer expert testimony in trial
courts on the issue of mental responsibility for criminal and tortious conduct. Loh
(1981) attributed this eventual acceptance to an increase in professionalization, "the
rapid growth of mental health professions during this period, and the formulation of
legal doctrines of insanity consistent with modern psychiatry" (p. 323).

One important decision, perhaps the first influential decision, was People v.
Hawthorne (1940), a Michigan case. Hawthorne had been tried for the murder of his
wife's lover and had pleaded not guilty by reason of insanity. The trial court refused
to qualify as an expert witness a professor of psychology from Michigan State
Normal College who had a doctoral degree and an impressive list of credentials. In
finding that the trial court had erred in not accepting the psychologist as an expert,
the Michigan Supreme Court ruled that the standard for determining expert status
was not a medical degree but the extent of the witness's knowledge. It advised trial
courts to evaluate carefully the merits of a potential witness's claim to expertise,
noting that a psychologist's ability to detect insanity could not be presumed inferior
to that of a "medical man." The dissenters, however, believed that insanity is a
disease and therefore only a person with medical training should qualify as an
expert.

Later, in Hidden v. Mutual Life Insurance Co. (1954), the Fourth Circuit Court of
Appeals allowed psychological expertise to be applied to a civil case relating to
mental status. The plaintiff argued that a disabling nervous condition prevented him
from engaging in any gainful occupation and entitled him to disability benefits. A
clinical psychologist with a doctoral degree administered a battery of projective
tests and testified on his behalf. Not only did he report on the test results, but he
also gave the opinion that the plaintiff deserved the benefits. When the lawyer for
the insurance company objected, the trial judge instructed the jury to disregard the
entire opinion testimony on the grounds that the psychologist did not qualify as an
expert. The circuit court of appeals ruled that the psychologist should have been
qualified as an expert to express his opinion about the plaintiff's mental condition.

While some psychologists were struggling to be accepted as experts on questions

of mental status, competence, and criminal responsibility, others during this era
were joining the crucial legal battle against school segregation by testifying and
consulting with attorneys in the state cases that would ultimately culminate in the
1954 landmark ruling Brown v. Board of Education (Kluger, 1975). David Krech and
Helen Trager, social psychologists who had published articles on racial attitude
tests, and Horace B. English, an expert on child psychology, were among many who
testified for the plaintiffs at some of the school segregation trials. Psychologist
Henry Garrett, a former president of the APA, testified on behalf of the state
(Jackson, 2000). Perhaps the most widely publicized-and since then highly
critiqued-contribution on behalf of the plaintiffs was that of Kenneth Clark and
Mamie Clark, who conducted the now-famous "doll research" to gauge the effects
of segregation. Kenneth Clark then gave social framework testimony reporting the
results of this research (Kluger, 1975). When the National Association for the
Advancement of Colored People (NAACP) appealed Brown and three other
segregation cases to the U.S. Supreme Court, Kenneth Clark, Isidor Chein, and
Stuart W. Cook wrote the Social Science Statement that included signatures of 32
eminent social scientists (Jackson, 2000).

This was not, however, the first social science brief to be submitted to an appellate
court. According to Brigham and Grisso (2003), that distinction belongs to the brief
submitted to the Oregon Supreme Court in Muller v. Oregon (1908). In that case,
Louis Brandeis-who later became a prominent justice of the U.S. Supreme
Court-argued in support of the state that work hours of women should be limited
because social science data demonstrated their inherent weakness.
HiSt ory has not been kind to the scientists in either case. Brandeis's patriarchal
both
arg~ment in the Muller case would be deplored and roundly denounced today,
for its tenor and for its lack of empirical support and rigor. Social scientists in the
Brown case were criticized for their naive methodology, lack of objectivity, and
faulty conclusions based on insufficient scientific evidence (Jackson, 2000). In
his ,-
his-toriographical inquiry, however, Jackson noted that the doll experiments were
but one prong of many studies that psychologists and other social scientists
1

referenced in their trial testimony and in the brief submitted to the Supreme Court.
He also argued convincingly that critiques of these social scientists reflected a
misreading of their testimony, their research, and their evaluation of relevant
evidence. (See also Brigham & Grisso, 2003, for an enlightening discussion of
psychology's involvement in both of these cases.)

During the same era, psychologists were continuing to make enough inroads
testifying on the issue of criminal responsibility that psychiatrists felt the need to
the
protect their turf. In 1954, the Council of the American Psychiatric Association,
an
Executive Council of the American Psychoanalytical Association, and the Americ
Medical Association joined in a resolution stating that only physicians were
ony.
legitimate experts in the field of mental illness for purposes of courtroom testim
Other individuals could participate only if their testimony was coordinated by
medical authority. The resolution greatly influenced trial courts (Miller, Lower, &
l
Bleechmore, 1978), which became reluctant to accept independent psychologica
testimony.

of
Finally, in Jenkins v. United States (1962), the Court of Appeals for the District
Columbia gave its own direct, although conditional, support to the use of
psychologists as experts on the issue of mental illness. Although the court was
sharply divided, its decision remains the predominant authority for the use of
l
psychologists in the area of criminal responsibility. Following that opinion, federa
c~urts and_ increasingly more state courts certified psychologists as expert
witnesses m both criminal and civil cases.