Forensic Psychology For Dummies (27 page)

Avoiding the ultimate question

Psychology experts in court must avoid answering what lawyers call ‘the ultimate question’ – whether the defendant is innocent or guilty. The expert is very likely to have formed an opinion on this point, but get their knuckles wrapped by the judge if they drift into offering such an opinion. In some cases, expert testimony may not be allowed into the court simply because it’s seen as getting too close to offering a decision that’s the court’s prerogative.

Sometimes the expert opinion may not seem to do the court’s work for it, but actually it does. The most obvious example is when the psychology expert’s opinion comments on whether a key witness may be lying, or may not have the memories claimed. For although the opinion isn’t directly commenting on guilt or innocence, the implication of the opinion is so clear that it would sway the court too much.

In general, judges prefer to form their own opinion about whether a person is telling the truth or not, and encourage the jury to do the same, instead of relying on an expert opinion.

Remaining unprejudiced

As I mention in the earlier section ‘Being called as an expert in criminal proceedings’, judges are always concerned that expert evidence may prejudice the jury to assume the defendant is guilty even though that evidence doesn’t deal directly with the facts of the case. This is particularly problematic for many aspects of psychological evidence.

I once gave evidence for a defendant who was accused of rape and murder. He made clear to me that he was ‘a stud’. He claimed he picked up women from a local nightclub on a regular basis and had consenting sex with them, and so he had no reason to rape anyone. This admission seemed important evidence to present to a jury, but his lawyers believed (I’m sure correctly) that the account of such a promiscuous existence would lead the jury to see the defendant as an unsavoury character and assume that if he could behave like that he was capable of rape as well. As it happens, the jury would’ve been right. He eventually confessed to the rape.

Detailing the Dangers: Ensuring Trial by Jury and not Trial by Expert

When considering the legal context of giving expert evidence, forensic psychologist witnesses need to remember that they’re advisers to the court and not the judge or the jury! This situation can often be a challenging requirement.

An experienced forensic psychologist once told me about a case in which, although he wasn’t sure whether the person he’d examined was guilty or not, he was certain that the individual was a very dangerous man and should be locked up for a long time! Fortunately, he didn’t say this in court because he’d have got into serious trouble!

Most legal systems are very aware of the overly influential nature that an expert’s testimony can bring to the court’s decisions and, as I explain in the earlier section ‘Being called as an expert in criminal proceedings’, go to some trouble to try and neutralise it. Often this requires disallowing evidence that the expert (and perhaps many observers) think is exactly what the jury needs to know. This problem is particularly significant in much forensic psychology evidence.

Unlike the evaluation of physical evidence, such as a blood sample or a fingerprint, psychologists are never dealing with some distinctly separate aspect of an individual. No matter how hard you try to divide a person up and only deal with a particular aspect of his mental state, you’re always commenting in a way that’s relevant to the person as a whole.

Therefore, a jury can take even the most limited comment on the characteristics of an individual as indicating something very important that spills over into other deliberations. A defendant, for example, may be a good worker and highly intelligent, but if the forensic psychologist lets slip that the person has ‘psychopathic tendencies’, the court would re-interpret many aspects of his activities in that light and in a negative way.

A major reason for the caution is the undue influence expert testimony may have over the jury. Many jurors may be in a daunting courtroom for the first time, and reaching a decision about guilt or innocence can make people anxious. If an assured, articulate, authoritative person confidently presents information to the court that implies guilt on the basis of their expertise, especially if that expertise is rather difficult to fathom and seems to come from the particular genius of that expert, many jurors may accept that expert’s opinion rather than worrying about working out their own. At least, courts believe this can happen, hence their caution.

Accepting the restrictions of being an expert in court

The potential significance of a forensic psychologist’s expert testimony was brought home to me by a prisoner I spoke to who told me that he avoided psychologists like the plague. His reason was understandable. From his point of view, a psychologist could form an opinion about him and his actions but he would have no possibility of influencing that opinion. He may have determined to give up any future criminal activity and lead a totally honest life, but if the psychologist formed a view that this stated intention was all window-dressing and that the man was inherently criminal, he’d have extreme difficulty challenging that opinion.

The problem for the psychologist is compounded by the fact that they’re not investigators and so may have great difficulty getting all the details of a case. If called in by the defence, for example, information that doesn’t support the defence case may not be given to the psychologist.

Experienced forensic psychology experts learn to discover what may be hidden from them and seek ways of obtaining all the crucial information.

In my early days providing expert testimony, I naïvely assumed that everything would be laid out before me and that I’d be able to offer the court an opinion on anything I thought I was competent to say. I soon realised after just a few cases that the rules of legal proceedings are somewhat different. The expert in court isn’t playing by the same rules she or he would in other areas of professional life. Experienced experts find ways of using the court process to get their message across, as I eventually did, but less experienced ones may be bamboozled by the legal process. Not all experts are the same. If you’re seeking an expert to provide evidence on your behalf, the expert you end up with can be crucial. You don’t always get the expert you deserve.