EXPERT WITNESS TESTIMONY

Who Speaks for Neuroscience? Neuroimaging Evidence and Courtroom Expertise

Jane C. Moriarty & Daniel Langleben, Who Speaks for Neuroscience? Neuroimaging Evidence and Courtroom Expertise, Case Western Reserve L. Rev. (Forthcoming 2018).

Abstract: This article explores the issue of proper qualifications necessary for expert witnesses who testify about structural and functional neuroimaging evidence. It outlines the nature of the problem; explains some of the complexity of the question of expertise as a matter of medicine, science, and law, using criminal cases involving mental health as a helpful template to discuss the issues; provides some thoughts about better regulating neuroimaging evidence by focusing on the qualifications of experts; and offers modest policy suggestions to address the question of expert competence.

“The Limited Effect of Electroencephalography Memory Reocgnition Evidence on Assessments of Defendant Credibility”

Francis X. Shen, Emily Twedell, Caitlin Opperman, Jordan Dean Scott Krieg, Mikaela Brandt-Fontaine, Joshua Preston, Jaleh McTeigue, Alina Yasis, & Morgan Carlson, The Limited Effect of Electroencephalography Memory Reocgnition Evidence on Assessments of Defendant Credibility, J.L. & Biosciences (2017).

Abstract: In two experiments, one using 868 online subjects and one using 611 in-person subjects, we asked subjects to read two short, fictional vignettes describing a protagonist accused of a crime. In one vignette, the protagonist was an employee accused of stealing a diamond necklace. The employee denied ever having seen the necklace before. In the second vignette, the protagonist was a stock trader accused of insider trading. The trader denied ever having seen the memo with insider information. Subjects read the vignette, and then answered Yes or No as to whether they thought the employee stole the necklace, and whether the trader saw the memo. We manipulated (i) the expert evidence (none, incriminating brain evidence, exculpating brain evidence, incriminating polygraph evidence, and exculpating polygraph evidence), and (ii) the strength of the non-neuroscientific facts against the defendant (weak facts with an alibi, medium facts, and strong facts with a motive).

We found that although there is a statistically significant relationship between exposure to neuroscientific information and subjects’ evaluations of the fictional defendant, the neuroscientific evidence was not as powerful a predictor as the overall strength of the case in determining outcomes. Our primary conclusion is that subjects are cognizant of, but not seduced by, brain-based memory recognition evidence. Subjects consider the evidence, and it has an effect in some contexts on their evaluations, but they generally weigh it as just one of many facts on the record.

Our results, remain exploratory and limited in their forensic use. We see great value in advancing collaborations that further explore the utility and admissibility of brain-based memory recognition evidence. But in this article we do not speak to the validity or reliability of EEG memory recognition technology as it would be applied in forensic settings. And, to be abundantly clear: we are not arguing that—given the present state of the science—courts should immediately admit brain-based memory recognition evidence. We are, however, arguing that if the evidence is both relevant and reliable, then Rule 403 may not necessarily be a barrier for admissibility.

“Differences in Expert Witness Knowledge: Do Mock Jurors Notice and Does It Matter?” by Caroline T. Parrott, Tess M. S. Neal, Jennifer K. Wilson, and Stanley L. Brodsky, The Journal of the American Academy of Psychiatry and the Law (2015)

Abstract: The knowledge of experts presumably affects their credibility and the degree to which the trier of fact agrees with them. However, specific effects of demonstrated knowledge are largely unknown. In this experiment, we manipulated a forensic expert’s level of knowledge in a mock-trial paradigm. We tested the influence of low versus high expert knowledge on mock juror perceptions of expert credibility, on agreement with the expert, and on sentencing. We also tested expert gender as a potential moderator. Knowledge effects were statistically significant; however, these differences carried little practical utility in predicting mock jurors’ ultimate decisions. Contrary to the hypotheses that high knowledge would yield increased credibility and agreement, knowledge manipulations influenced only perceived expert likeability. The low-knowledge expert was perceived as more likeable than the high-knowledge counterpart, a paradoxical finding. No significant differences across expert gender were found. Implications for conceptualizing expert witness knowledge and credibility and their potential effects on juror decision-making are discussed. Read the full article.

“Gender and the Experience of Mental Health Expert Witness Testimony” by Aimee C. Kaempf, Prudence Baxter, Ira K. Packer,
and Debra A. Pinals, The Journal of the American Academy of Psychiatry and the Law (2015)

Abstract: Mental health expert witness testimony involves complex tasks, and the capacity to perform under pressure is a fundamental skill of a forensic professional. In this context, it is important to understand the nuances of the provision of expert witness testimony. There have been several efforts to examine gender bias across legal and medical systems. Despite these reviews, little is known about how men and women differ or are similar with regard to performing expert witness functions. The purpose of this pilot study was to examine whether the testimony experiences of psychiatry and psychology experts vary by gender. Differences across certain domains, such as the sense of never experiencing anxiety and the sense of one’s impact on case outcome were seen across genders. Few other gender-based differences in the experience of providing expert witness testimony were seen. Although the findings of this study raise further questions, they highlight some of the important subtleties noted in forensic practice and the work of the expert witness. In future studies, researchers should continue to explore these findings on the influence of gender and expand to consider culture and race as additional factors in the experience of expert witness testimony. As forensic professional practice evolves, it is important to understand unique aspects of forensic practice, to improve training of forensic experts, and to assist forensic experts in anticipating what they may experience related to the provision of expert testimony. Read the full article.

“Commentary: Is the Plot Thickening for Partisan Forensic Expert Witnesses?” by John L. Young, The Journal of the American Academy of Psychiatry and the Law (2015)

Abstract: Knowledge of the past has a powerful way of clarifying the challenges of the present. Dr. Weiss enables the reader to exploit this phenomenon as it applies to the important perennial struggle of the expert witness for objectivity. Read the full article.

“John H. Wigmore on the Abolition of Partisan Experts” by Kenneth J. Weiss, The Journal of the American Academy of Psychiatry and the Law (2015)

Abstract: The American justice system traditionally has relied on expert witnesses hired by adverse parties, resulting in the appearance of dueling hired guns. There have been attempts to reform the system through court-appointed impartial experts, but trial attorneys have resisted them. Celebrated cases have brought the problem to the forefront—for example, the 1924 murder trial of Richard Loeb and Nathan Leopold, Jr, in Chicago. These young men were on trial for kidnapping and killing a teenage boy. That there was no motive but thrill-seeking incensed citizens, who called for their death. Several psychiatrists testified at the penalty phase. The judge sentenced the defendants to life in prison, ostensibly because of their age. Commenting on the case, John H. Wigmore, Dean of Northwestern Law School and authority on evidence, critiqued the system of partisan experts. This article contains a reprint of his editorial and a discussion of it in the context of evolving expert testimony standards. My conclusion is that a robust but honest airing of opinions is most helpful in criminal cases and that court-appointed experts may be more appropriate in civil and domestic relations matters. Read the full article.

“Evidence Offered in Mitigation Ruled Aggravating Factor in Capital Murder Case” by Susie Morris and Timothy Botello, The Journal of the American Academy of Psychiatry and the Law (2015)

Abstract: Honie v. Utah, 326 P.3d 79 (Utah 2014), reviewed the decision of Utah’s Fifth District Court regarding the adjudication of Mr. Honie in a capital murder case. Following a death sentence, Mr. Honie appealed to the Supreme Court of Utah for postconviction relief on the basis that his counsel during the trial in chief was ineffective and that the ineffectiveness was prejudicial to the outcome of the trial. Among other points, Mr. Honie asserted that his counsel unreasonably relied on a single forensic expert to evaluate him. Further, he contended that it was a flawed strategy to admit an inculpatory statement (disclosed to a forensic psychologist) during the sentencing phase, though the statement was used in an effort to illustrate the petitioner’s remorse. Read the full article.