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Аssignmеnt 1: Rеsеаrсh Рrороsаl

Research Question

In what ways can mental health disability affect the provision of testimony?


The law of evidence is mainly focussed fact finding. As such it governs the type and nature of information that can be presented in a legal proceeding, by who, in what way, and the degree of importance it should be accorded. Further, evidence law offers guidance and structure regarding the manner in which information should be introduced, examined and inferred. Consequently, evidence rules provide the structure for establishing facts and events, and help define what an individual know and how they know things, during the course of the legal process. These determinations form the core of judicial rulings, and are recognised as the «soul» of the legal process. Since laws of evidence are associated with knowledge, they are considered to be, at one point, most technical and, in another instance, least technical (MacPhail & Verdun-Jones 2013).

On the one hand, evidence laws are highly procedural and emphasize on minute detail as related to the structural features of fact finding. Concurrently, they consent to an extensive application of human discretion by the law’s judicial agents regarding the evaluation of materials and evidences through direct and unmediated impressions. Accordingly, the law of evidence both replicates and creates individuals’ sense of reality, whereby, all forms of knowledge held by the individual are the result of structured reasoning and analysis. Therefore, the rules of evidence that regulate what information is relevant or irrelevant to a proceeding; when testimony is considered as credible; the categories under which to analyse and evaluate human behaviour are value laden and assume a specific rather than a universal standpoint (Martin 2011).

Consequently, individuals with mental health disabilities carry an additional and distinctive challenge to the law of evidence. Particularly, some of the fundamental components upon which evidence rules are founded, including recollection and memory, reliable conveyance of information and credible behaviour, may vary when presented by individuals with mental disabilities. Accordingly, this has necessitated the articulation of “special norms» for such situations (Ochoa & Rome 2009).

However, there is a conflict between distinguishing mental disability as a distinctive category which requires unique procedural and evidentiary handling, and the notion that mental disability is mainly a social construct. Notably, under the social construct understanding, disability is seen as primarily the outcome of external and environmental factors and cannot be reflected through focussing on the impairment only. Consequently, recognizing that individuals with cognitive and mental disabilities belong to a specific category with reference to evidence law, contradicts this notion (O’Mahony 2010).

Accordingly, this research seeks to overcome this conflict by examining the impact of mental health disability on the provision of evidence in a legal proceeding. The research shall be conducted in the form of an analysis of available literature and case law in the area of evidence law as relates to mental health disabilities. The research will be guided by two main hypotheses including:

H1: Mental Health disability is, in fact, analogous to other interest groups that have criticised the laws of evidence as non-reflective of their life viewpoints, such as race, gender, and ethnicity.

H2: The ability of an individual with mental disability to be a credible and reliable witness depends on both the external, contextual or environmental factors and the limitations occasioning from the impairment (Peternelj-Taylor 2008).


MacPhail, A & Verdun-Jones, S 2013, ‘Mental Illness and The Criminal Justice System’, International Centre for Criminal Law Reform and Criminal Justice Policy, Vancouver.

Martin, W 2011, ‘Mental Health and the Judicial System’, Arafmi Breakthrough Series, Perth WA.

O’Mahony, B 2010, ‘The emerging role of the registered intermediary with the vulnerable witness and offender: Facilitating communication with the police and members of the judiciary’, British Journal of Learning Disabilities 38, pp. 232-237.

Ochoa, T & Rome, J 2009, ‘Considerations for arrests and interrogations of suspects with hearing, cognitive and behavioral disorders’, Law Enforcement Executive Forum Journal 9(5), pp.131–141.

Peternelj-Taylor, C 2008, ‘Criminalization of the mentally ill’, J Forens Nurs, 4, pp.185-187.