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"The Status of The Expert in Legal Proceedings."

Conference at the Institute of Forensic Sciences, Krakow, 17 -19 December 1996

"The Problems of New Forms of Expertise" Presentation by Professor David Canter

Foci:

The Jury
Called by Adversaries
Experts are Witnesses who can Offer an Oppinion
Experts as Just Witnesses
Who is an Expert?
What is Expertise?
Assessment of New Areas of Forensic Expertise
Bibliography

Thank you for the opportunity to contribute to this discussion of the role of expert evidence in legal proceedings. I do believe that there is a great deal to be gained by this reciprocal exchange of ideas across Europe. There are strengths and weaknesses in all our systems and we can only improve across Europe by comparisons. Indeed, I am happy to declare that in this view of the value of European Co-operation I do not support the views of the present British Government. I wish to discuss the role of expert evidence in British Courts from the view point of my own experience in giving evidence. That experience has been limited to areas in which new types of expertise are being introduced, especially evidence from psychology. It may be worth emphasising, at the start, that we have virtually invented a new discipline, which I have called Investigative Psychology that is specifically aimed at contributing to criminal investigations. This deals with interviewing processes, investigative decision making and the understanding of criminal behaviour, but because of its novelty it is still unclear as to exactly how it will find its way into judicial processes. We are therefore engaged in considerable debate as to what the appropriate role will be for this new science. It is out of this debate that I draw the following considerations. I do think the peculiarities of legal systems are most clearly revealed when some change or development is introduced. It is at that point that the assumptions on which the system is based are most often revealed. I therefore think it will be helpful in understanding some of the curiosities of the way the British legal system uses expert opinion if I focus on my particular experiences of new forms of evidence.

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The Jury

But I think a little background may be helpful to those of you who know very little about the English system of justice. One of England's first imports from mainland Europe, at the time of the Norman Conquest, about one thousand years ago, was a system of justice. In this system people wishing for decisions from the King's Court could ask for the summoning of 12 Knights to ascertain, either from their own knowledge or on inquiry from others, the truth of the matter at issue; the verdict of this court, if unanimous, was accepted as conclusive. It is important to recognise that these advisors to the court were chosen because of their knowledge of local customs and circumstances. They were regarded as representative members of the public of their day. This group of local citizens became the present day jury. But as long ago as the early 15th century, the jury was established as a judge of fact based on the evidence submitted in an action. The jury is still the cornerstone of the English legal system. It meets in secret and its discussions cannot be recorded or reported, only its verdict. The Judge does not retire with the jury as in French courts. These ordinary citizens form their own views in any way that makes sense to them. So the expert in English law does not try to convince a learned judge, who is used to the complexities of legal arguments and will certainly have a very high level of education. The expert is trying to convince the jury. A random selection of local citizens who may have left school without any qualifications and may not even know what a psychologist, psychiatrist, linguist or what ever, is. There are clearly many potential difficulties with this system. But it does have one huge advantage that I have come to respect the more involved I have become with the legal process. The jury system is the last bulwark in the defence of democracy. Precisely because the jury is not part of any professional or institutional organisation and does not have any pre-determined perspective on the issues at hand, it reduces the possibility of the authorities manipulating justice to their own ends. It seems likely that the jury system does lead to a bias of guilty people being allowed to walk free. But I think that is a definition of a free society. One that is more concerned that the innocent should not be found guilty than that the guilty should be punished at all costs.

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Called by Adversaries

The second important fact about the British legal system is its adversarial nature. I believe this draws its strengths from the Anglo-Saxon empiricist philosophical tradition. The view that truth will be found through the battle of minds rather than the considered thoughts of a scholar. This means that experts are called by one side or the other in a case. The defendant's expert will be challenged by the prosecution's expert. There will be a battle of experts. Indeed, all of my experience in court has been to challenge the opinion of the other expert called by the other side. This is not the situation in which an individual can establish his pre-eminence and by virtue of his own accepted status give an opinion that he can expect to go unquestioned. Any expert in an English court can expect to be involved in a battle of wits that is fought out in front of a jury that will not understand the different theoretical positions being taken. They will judge the experts as they see them in the witness box. The very stature of their expertise will be open to question by the recognition that another expert does not agree with them.

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Experts are Witnesses who can Offer an Opinion

In English courts the status of the expert is reduced even further by the fact that he is treated as just another witness. The only difference between the expert witness and other witnesses is that he is allowed to offer an opinion not just to comment on facts as he knows them. But that opinion has to be presented as if it were the evidence of a witness, under oath, in the witness box, first questioned as evidence in chief, then cross-examined. It is this evidence given in open court in front of the jury that constitutes his expert opinion. When I first started giving evidence in court this was the aspect that most disturbed and puzzled me. I was used to presenting a lecture on my studies, much as I am doing now, but I was not allowed to do that. A barrister, who knew very little about my area of study asked me a series of questions to reveal my opinion. The opposing barrister then cross-examined me about my opinion. By means of this curious pseudo-conversation an attempt was made to reveal the arguments that were based on a subtle consideration of complex matters.

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Experts as Just Witnesses

It is worth emphasising that although I had presented a report to the court this was not my evidence. It was the opinion offered in the heat of the moment in response to questions in front of the jury that was my evidence. If I stuttered, looked uncomfortable, tried to redefine the question in ways that suited me, if I could not remember all the facts at that moment, if I showed any confusion about the details of the case, if I agreed I had made an error, even if my tie was not straight, all these matters could be considered by the jury and could have an influence that would out weigh years of research and the highest qualifications. You may think this is an exaggeration, but I can give you one simple illustration. In one case where I was rebutting the opinion of another expert I was asked in cross-examination why I had not taken that other expert for lunch when he came to give a lecture at an international conference I had organised. The implication was that I was leading a vendetta against the other expert and not treating him seriously! A further consequence of the expert being treated as any other witness is that all the rules of evidence can be used. For example, I have been challenged because I did not actually do every single calculation myself. It was therefore suggested that my evidence was mere hearsay and thus not admissible. The junior research assistant who did the calculations, it was claimed, should have been called as the witness. In this battle in front of a jury of people who have no specialist knowledge, skills or training, it is not the evidence that is being assessed but the person who is giving that evidence. Does he make a credible witness? Is he a person whose opinion you can trust? Like any other witness his demeanor, and apparent honesty is on trial. However, there are also protections inherent in the expert being treated as just another witness. He is not allowed to introduce any information that may, of itself prejudice the jury or that may draw upon information that may itself not be admissible as evidence. So, for example, there could be some challenge to an expert's opinion if it were based upon a research project that was built around interviews with criminals about how they committed their crimes. This is a very important point and one on which English law is probably more stringent that American law. In America FBI agents have been allowed to give opinions on the likely guilt of an accused person because he fits the profile they have concocted of the type of person who committed the crime. Such FBI profiles are totally unscientific and derive from casual conversations with convicted offenders and the experience of investigating cases. Yet they have been tolerated in some American courts, although all the opinions based on this FBI evidence has subsequently been overturned on appeal. In one notorious case in England an attempt was made to introduce similar evidence but the case was dismissed by the judge. The risk of prejudicing the jury is also important in these cases. The expert must not introduce information about the accused that could, of itself, imply his guilt. For example if an expert said that such crimes were committed by paedophiles and declared that the accused was a known paedophile then revealing that fact could prejudice the jury whether they accepted his expert opinion or not. Because new areas of forensic psychological research are exploring precisely those issues of offender consistency the risk of prejudicial opinion is very great indeed. Removing prejudicial opinion from the courts is a very important safeguard and one that must be protected. Indeed, this seems to me to be one of the greatest differences in the role of experts in the anglo-saxon system and in Eastern Europe. It seems that because the expert is acting for the courts and indeed often for the prosecutor directly, in places like Poland, who is also the leader of the actual investigation, that it is acceptable, often required, that the expert offers opinions on the general character of the accused. These opinions are thus an integral part of the court proceedings and are used to help determine guilt, as well as sentencing. In Britain the expert must stick to the facts of the case. The judge may take account of psychological assessments in reaching a decision on sentencing, but never on a verdict.

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Who is an Expert?

One curious, but important consequence of an expert being treated as just another witness is that a person who has little status in his professional circles can be regarded as a very convincing expert witness in court, and vice versa, some one very highly regarded by the academic community may have his opinion ignored in court. It is for this reason that the recognition of new areas of expertise is so problematic. Indeed, in my opinion, the courts are constantly being challenged to accept new forms of expert evidence before the expert community has established the validity of that evidence. As a consequence, in some cases, quite spurious opinions have been allowed into court that have absolutely no scientific validity. This is where the introduction of new forms of evidence so clearly reveals the strengths, and a number of the weaknesses of the English legal system. There are no clear guidelines that I have been able to identify as to what defines an expert in English law. The crucial point seems to be that the expert has access to knowledge that it cannot be assumed the jury will have. The jury has to be allowed to decide questions of fact for themselves. It is only if the actions or facts require analysis or interpretation beyond the capabilities that the jury may reasonably be expected to have that an expert is allowed. A witness may be qualified to present himself as an expert due to his knowledge, skill, experience, training or education. This is a very wide range of possible foundations for expertise. In many areas of knowledge, especially those that relate to studies of human beings, it is an open question as to whether a professional's experience does really provide him with a perspective that should carry more weight than that of the lay jury. In a number of cases in which I have given evidence challenging linguists I have told the court that a jury is possibly better qualified to assess the credibility of a witness whose demeanour can be judged in the witness box, than some one who has merely studied a written statement transcribed by a third person. The problem as I see it, is that it is for the court to decide who is acceptable as an expert witness. A person who has spent his life counselling rape victims may be as acceptable as an expert as somebody who has written the definitive work on rape but has never talked to a victim in his life. Membership of appropriate professional bodies does, of course, have an influence on the court's judgement as to whether a person should be allowed to give evidence as an expert. But in many areas of new scientific development there may be lively disagreements as to what the appropriate professional membership is. Linguistic analysis is a very interesting illustration of these difficulties, not least because it is one area where lawyers believe they can understand the science because they believe they are experts in the use of words. In a number of cases in which I have been involved linguists have claimed, for the defence, that their analysis of a piece of text reveals that it is not the words of the accused, as the prosecution is claiming. The linguists claim their opinion is expert because they, after all have studied language and its structure and therefore have can give a view on its special peculiarities that a lay man could not be expected to know about. My challenge to this as a psychologist is two-fold. One is that linguistics is not an experimental science, but a description of language. As a consequence linguists do not have the skills in evaluating the strengths of their conclusions. They do not understand how to measure the degrees of variation in any given person's utterances. The second point I would make is that in order to assess the characteristics of a person's utterances it is necessary to have some understanding of the psychological processes that give rise to speech and of the contextual, emotional and intellectual influences that shape what and how a person talks. Both of these areas of knowledge are, I would claim, within the realms of psychology rather than linguistics. You can imagine the difficulties the courts can have in disentangling this demarcation dispute. But there is no external body they can turn to in English law in order to establish the rights or wrongs of any particular individual being regarded as an expert. They are very influenced, as a consequence, by whether the person has been accepted as an expert by any other court. This does mean that a person can slip into giving expert evidence under one quite reasonable guise and thereafter be allowed into many other trials in which his expertise is less valid. Of course, within the adversarial framework an initial battle will sometimes be fought over the acceptability of any given individual as an expert before that court. The danger here is that any person who comes with a technology, diagrams or statistical calculations may convince a court that he is an expert in part because the judge and lawyers do not understand what he is claiming to do. In their search, especially to establish innocence and to raise a reasonable doubt, English courts are keen to ensure that any feasible evidence be considered even though its validity has not been widely established. This is especially true of new technologies or discoveries. In their early stages the relevant scientific community may also not understand fully what the expert claims to be able to do. He may therefore have his opinions accepted without challenge. This is particularly unsafe because the technology is likely also to impress the jury, rather than convince them. In this way very poor science can lead to miscarriages of justice.

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What is Expertise?

Even though a person may be accepted as an expert because of his knowledge and skills there is no guarantee that the actual expertise on which he draws is valid. It is worth repeating that, in effect, in an English court it is the credibility of the expert witness that is being considered. The full history of their scientific endeavours in the particular technology they describe cannot really be thoroughly examined through the adversarial process. In the end, once the credibility of an expert has been established he will be asked, "in your opinion what do your researches indicate?". It is this opinion that is left before the jury. The examples I have been giving have drawn upon social science expertise, but the same occurs in an even more problematic form when the expert comes from the arts. There opinion can only be defended from experience. The famous trial forty years ago of the publication of D.H. Lawrence's "Lady Chattterley's Lover" was based on having people who were regarded as literary experts offering the opinion that the book was art not pornography, a problem of definition that has not disappeared to-day. In the realms of scientific expertise this reliance on the opinion of individuals rather than reference to external arbiters makes the courts vulnerable to enthusiastic amateurs. They are also vulnerable to a credulous over reliance on some new development. Consequently the natural history of the acceptance of new expertise sometimes has been for the courts to accept new areas of expertise without any thorough understanding of the range and limits of applicability of the new scientific development. The scientific community then becomes aware of this abuse of science in the courts and proceeds to do the appropriate research. The results of this research is then used in subsequent cases to challenge that expertise, which may lead eventually to such expertise being denied to the courts totally, the baby being thrown out with the bathwater. This pattern has happened with many areas of expertise. DNA typing originally went virtually unchallenged but now is being questioned. In the English courts polygraph assessments are not acceptable as evidence, although briefly they were. Hypnosis, once acceptable, is now regarded with great suspicion.

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Assessment of New Areas of Forensic Expertise

The point I would like to emphasise here is that science and legal practice are two different realsm of discourse. They operate against different criteria of validity. Given the importance in British law of assuming a person is innocent until proved guilty, and of the innocence being accepted if there is 'reasonable doubt', it is the case that many scientific findings, published in learned journals do not remove the possibility of reasonable doubt. Thus although these scientific findings may be acceptable to the scientific community they may not be strong enough for a British court. Yet with the emergence of new forms of expertise, often the scientific debate has been conducted in court between barristers in the form of cross-examination of experts, instead of it being conducted between academics and thrashed out between themselves, for a consensus to emerge that can then be drawn on in court. In England it has sometimes been the case that the really telling debates about new areas of evidence have been in front of juries. Experts have staggered from the battle of the courts back to their laboratories to conduct subsequent research ready for the next legal battle. I am not convinced that either justice or science is assisted by this process. If I may finally turn to the Polish context. In rapidly developing and changing systems I can see these problems being enormously magnified. There are differences in scientific opinion across Europe as to the validity of many psychological techniques. These are compounded by the differences in the legal systems. What may seem reasonable in one jurisdiction, because of the little weight it might carry in front of magisterial judge, could be an anathema in another jurisdiction because of the influence it could have on a jury. Certainly, I would expect most British forensic psychologists to be horrified to discover that the analysis of Rorschach tests are routinely accepted by Polish courts, on behalf of the investigation, to help determine judgements. There clearly will be increasing difficulties in recognising the fairness and freedoms implied by different legal systems if local courts continue to be the main arbiters of what expert testimony is acceptable. Yet the right of the accused to have access to any reasonable evidence that might raise doubt about his guilt also has to be protected. In a legal system in which the expert is called by the court, he or she clearly has much more power than when he or she is called by the defence or the prosecution. So it is even more important that the expert's opinion is a clearly valid one. At present it seems to me very unlikely that the Polish courts are always obtaining such valid opinions. These issues are the basis of heated debate in Britain. I am sure they will become even more heated in Poland as your legal system opens itself up to the democratic process.

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Bibliography

Blau, T.H. (1994) Psychological Services for law Enforcement Chichester: Wiley

Bull,R and Carson, D. (1995) Handbook of Psychology in Legal Contexts Chichester: Wiley

Canter, D. (1996) Psychology in Action Aldershot: Dartmouth

Muller, D.J., Blackman,D.E. and Chapman, A.J. (1984)
Psychology and Law Chichester: Wiley

The Jury
Called by Adversaries
Experts are Witnesses who can Offer an Oppinion
Experts as Just Witnesses
Who is an Expert?
What is Expertise?
Assessment of New Areas of Forensic Expertise
Bibliography

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