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Mental Health & the Law: An evaluation of the adequacy of mental health experts opinions and their impact in trials ((MUST HAVE PERFECT ENGLISH PLEASE)) Essay Example

  • Category:
    Law
  • Document type:
    Essay
  • Level:
    Undergraduate
  • Page:
    6
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    3778

Task: Evaluation of the Adequacy of mental health experts’ opinion and their impact in trials

Task: Evaluation of the Adequacy of mental health experts’ opinion and their impact in trials

Introduction

An expert witness has been invariably defined as a person who posses expertise in a field of interest and who can be summoned by the court to assist at arriving at the truth or understanding evidence in the prosecution of a case1. When the defendant’s mental state is held in question at the time of committing crime, the court may order sanity evaluation or criminal responsibility. The basis of the insanity plea depends on the ground that the defendant was not criminally responsible for his actions at the time he committed the crime because of mental disorder influence. An expert witness, usually a psychiatrist or psychologist, may be called to give his opinion about the defendant’s sanity at the time of offense or on criminal responsibility. In turn, the expert will have to examine and review records on whether a defendant’s mental state at the time he committed the crime meets the threshold requirement for a major mental illness or disorder2. Despite permitting expert witnesses to state their opinions on the mental health of the defendants, courts have been reluctant to permit psychologists to express opinions (as expert witnesses) on matters such as when the defendant suffers from some conditions, such as posttraumatic disorder.Indeed expert witness accounts are generally restricted to expressing opinion on such matters as whether an offender has a serious mental disorder during the commission of crime, while at the same time detailing the symptoms of any diagnosis, such as testimony on the mental health of the defendant. Thus if the issue is the defendant’s mental state at the time of commission, then the defendant’s insanity or sanity would be the ultimate issue. In criminal law, an ultimate issue refers to a legal issue where an expert witness provides testimony or expert opinion3. In New South Wales, the rule is however restricted to Evidence Act 1995 (NSW) section 80, which provides that the evidence opinion is not unacceptable just because it is an ultimate issue4. This means that an expert witness cannot be asked central issues or questions that the court is entitled to decide in common law, such as the ultimate issue in the prosecution of a case. Indeed, legal scholars have posited that the concept of ultimate issue is uncertain, conceptually problematic and difficult to implement. These have drawn questions on whether an expert opinion given on a defendant’s mental state at the time of committing the crime is reliable, whether it is merely a speculation that is made basing on the defendant’s mental state at the time of prosecution of crime, or whether the psychiatrists can actually determine the mental state of an individual in the past. Other concerns have been the issues associated with allowing experts to give opinion in trials and the extent in which expert opinion can affect the outcome of the trial.

Expert Evidence Role in Outcome of Case

Dynamic scientific and technical advances have continued to affect the evidences presented at the courts, including the expert evidences. Hence, determining which expert evidence is reliable and which one is not reliable has continued to become a daunting task for courts, specifically for the trial judges. The judges must identify the complex issues in the fields of study that may be unfamiliar to them so as to determine the relevance of the expert evidences. However, the decision to exclude or permit the expert testimony has the potential to influence the outcome of the case.

.8was in dissociative state when he committed the offense, after investigating the offender’s past behaviors. Since the investigation was based on the defendant’s past behaviors, it basically remained upon the evidences of the expert witnesses to determine the outcome of the case Leonboyer when he killed his girlfriend. However, contrary to the prosecution, a psychiatrist and psychologist who were acting for the defense argued that there was Leonboyer , which demonstrated that experts in human behavior may be influenced to work as advocates instead of impartial providers of truth. In the case, two psychiatrists, acting for the Crown, testified that there was no evidence of automatism in7R v Leonboyer Victorian Supreme Court case. These issues were noted in the6. The law has been criticized for creating opportunities for individuals to fake automatism, hence increasing risks of miscarriage of justice. As a defense in criminal law, automatism has raised important issues such as how far the expert witnesses can assess human behavior and how far they can influence the outcome of the case5R v FalconerSome cases such as psychological blow automatism (a human condition where one’s physical body does not accompany the mind) have triggered much controversy in Australia’s legal system on the extent in which expert evidence can influence the outcome of the case. In Australia, defense of automatism attracts full acquittal, such as in the case of

. This further draws the questions of how reliable the expert opinion about a defendant’s mental state at the time of committing the offence can be.9Although this is the premise that the Australian law operates on, for the interest of justice, it is important to generate a clear understanding of the mental state of the defendant so as to prevent artificial battle between experts, so as to get a more admissible legal test to determine whether an individual actually suffered from a state of mental disorder during the commission of crime

Reliability of expert opinion

For the expert opinion to be deemed as reliable, some basic principles must be put into account: the evidence must be credible, consistent, comprehensible and comprehensive. Overall, in determining whether the witness has expertise in the field of interest can be determined by comparing the area in which the individual claims professionalism with the subject matter of the witness’ evidence10.The criteria for reviewing the expert opinion can be determined using three landmark cases, namely Daubert v. Merrell Dow Pharmaceuticals Inc., (The Daubert Trilogy), General Electric v. Joiner, and Kumho Tire Co., Ltd. v. Carmichael.The Daubert standard is based on reliability while the Daubery test is based on relevance for good science11. With regard to reliability, the major interests are on whether the scientific theory is testable, whether the scientific theory has been subjected to peer review or publication, whether there is a potential for the scientific technique to err and lastly, whether the theory has claimed some general acceptance12.

.17. Lastly, the court may determine whether the expert’s field of specialty can attain reliable results based on the type of opinion the expert proffers16Kumho Tire Co. v. Carmichael, where the judge concluded that the expert evidence excluded where the expert had failed to consider other obvious cases of the claimant’s condition. Fourth, if ever the expert remains careful and pragmatic as he would in his regular work outside of the court, as was requested for by the judges in the case 15.Claar v. Burlington N.R.R. Also, the expert should have sufficiently provided alternative explanations. This was noted in the case 14General Elec. Co. v. JoinerOther grounds includes whether the expert has unreasonably generalized his opinion from unacceptable grounds to unfounded conclusions or where the court may conclude that there exist great analytical gap between the opinion provided and the data, such as the judges held in the case . 13Daubert v. Merrell Dow Pharmaceuticals, IncCourts have found other factors pertinent for determining whether the expert evidence is sufficiently reliable to be as tribunal of facts. The factors include whether the expert proposes to testify on matters that are directly or indirectly related to research, or whether they developed the opinions necessitated by the need to testify, as was seen in the case

Most court cases — both on the defendant’s mental health and other spheres — show that expert opinion is not treated as overtly reliable in the court of law. This has further drawn restrictions on the extent to which should be accepted in the court of law. For instance, the expert witness is not allowed to make a statement that addresses the matter as to whether the legal test for sanity or insanity has been made as matter is left to the judges. This demonstrates that the expert opinion given on the defendant’s mental state at the time of committing crime is not readily treated as reliable by the law. Indeed, expert opinion on an ultimate issue is limited to the criminal aspects. One of the aspects is the expert’s testimony that demonstrates the defendant’s mental case pertinent to the legal decisions that is to be decided by the court18.

Further, although the expert witness qualifies as an expert in his specific field of specialty, the law imposes restriction on the admissibility of the evidence the expert is entitled to provide19. In fact, three such limiting rules are suggested, namely the basis rule, the ultimate issue rule and the common knowledge rule. The “ultimate issue” rule relates to the ultimate issue that is to be decided in the case. In the case Flavel v Samuel, the judge discussed the decency of the expert witness by giving evidence based on the ultimate issue that the court had to decide20. In the judge’s view, expert evidence is still strictly inadmissible although it can in fact be admitted without objection in some case as it is not possible for the opinions expressed by the expert to be expressed in any other form. However, it should be accepted in cases where it is absolutely necessary21.

From the above statements, it can be argued that the judge’s opinion represents the law in Australia, where the rule is often ignored, making it unfeasible to foretell when it should be applied to exclude issues that may be substantially relevant to the evidence. This limitation shows that expert opinion given about a defendant’s mental state at the time of committing the crime is not treated as reliable22. Further, the common knowledge rule provides that expert testimony on issues of common knowledge is inadmissible. Australian courts have been indisposed to permit expert witnesses to testify on issues that the judges are capable of assessing for themselves. In addition, the basis of rule provides that expert opinions based on hearsay are inadmissible. Experts, similar to all other witnesses, must comply with the hearsay rule, where opinions which demonstrate repetition of hearsay are not permitted by the court. The admissibility of the hearsay evidence is still overseen by Part 3.3 (subsections 76 to 80) of Australia’s uniform Evidence Act 1995, such as was seen in the case R v Whyte, where the evidence in the case was of the complainant23.

where the court held that the evidence presented on battered women syndrome could not be accepted, but when the matter was appealed, the Appeal Court decided that it was in fact an issue that called for expert testimony, since it was considered by the expertise in the field as scientific knowledge. 24R v KontinnenIn determining whether an expert opinion is reliable, the courts of Australia in 1984 suggested an “expert opinion test,” which requires that it should be determined whether the issue that calls for the expert opinion is such that an individual without expertise in the field can be able to form a sound judgment on the issue without the aid of a witness who possess the expertise, and secondly, whether the issue that calls for the opinion is part of the expertise or knowledge that is adequately recognized as an acceptable body of knowledge in which the expert witnesses can be called to bring his expertise to the court. The two tests were demonstrated in the case

Relevance of expert opinion

In evaluating whether the expert evidence is relevant, the courts must consider whether the methodology or reasoning applied can further be properly applied to the facts in the subject matter at hand. Thus, there must be a convincingly valid scientific link and basis to the related inquiry25.

Expert’s opinion is considered as relevant when it is viewed as being relevant to the pertinent issue at hand. If the prejudicial effect prevails over the probative value, then the court may rule that the expert witness is not reliable and hence exclude the evidence.In addition, if the expert while seeking to draw inference uses speculations, then the evidence will also be rejected, as was held in the case Straker v R26. The question of relevance and reliability of expert evidence have triggered questions on whether expert evidences are merely Speculative or Objective. Towards this end, bodies of arguments, opinions, researches and philosophical debates on whether expert evidence on the state of mind of the defendant during the commission of crime cannot have all pointed to the question as to whether the evidences should be treated as opinions or facts backed by empirical evidences. Legal scholars have further pointed out to the fact that the expert opinions are either accepted as a function of an individual’s fundamental religious, jurisprudential presuppositions or not. Given the fact that moral thesis cannot be measured or proved, logical or scientific arguments on the insanity defense as well as the evaluation of the mental state, the decision to accept or rejected based or reject the evidence is not an issue of science or proof. Indeed, this fundamental principle is based on the premise that in regulating social interaction based on justice and fairness, it should be assumed that social interactions such as criminal responsibility for particular categories of behaviors should be based on the “ethical calculus” that determines liability, blame, culpability and criminal responsibility as a function of mental capacity and deliberateness. The principle of legal axim “Actus non facit reum, nisi mens sit rea,” which can be translated to mean an action may not be recognized by law as evil so as to be deemed as criminally punishable when committed by an individual who has the potential to recognize the act as being evil27.

.30, Lord Pearce commented that human evidence is subject to countercurrents such as bias, prejudice and impartialities, as well as imagination and accuracy, thus expert witnesses can prove essential in determining the mental or physical abnormality of defendant during the time the defendant committed the offence. Hence, it is admissible to use expert evidence of mental illness, which could make a witness to be incapable of proving reliable evidence29Toohey v Metropolitan Police Commissioner. In the case 28Despite many assertions that outweigh the reliability of expert witness in cases that involve mental stability, expert witnesses are deemed as necessary in common law however speculative or objective they may be. This is because the judges may need the expertise in determining the mental state of the defendant in the past, where they were not present. Indeed, there is an established authority for the suggestion in common law that expert evidence should be led as to the mental state of a witness relevant to the assessment of his credibility, as humans are naturally vulnerable to emotions, prejudices or biases

Some legal scholars have demonstrated that there should be no modern rule of evidence and that an expert witness may not be entitled to express an opinion on an ultimate fact in issue31. In the case R W Miller & Co Pty Ltd v Krupp (Aust) Pty, the judge ruled that it is not possible for a rule in those terms to be considered as there are many cases where an expert gave an opinion and where a rule in those terms was held in doubt in the High Court, such as in the case Murphy v The Queen32, where a lesser restriction was recognized that the expert may not be entitled to give an opinion on an ultimate issue that entails the application of legal standard, such as when the risk was reasonably estimable or when defendant was negligent.

Some legal scholars have however argued that the main justification of an ultimate issue is to check the expert against delving into the decision making process, which should be left to the judges33. Although the statement is clearly in the interest of justice that such evidence should be provided, reservations have still be expressed on whether such evidence should be acceptable in the court34.

.36 that seeks to prove that witness may be aware or unaware of issues to which the evidence relates should permit the need for expert witness to give an opinion of his mental stability. Nevertheless, this is still a more restricted proposition compared to the common law in the Toohey case35, the acceptance of such evidence is less apparent. Interpretation of section 106(d) of the Act lifts the eliminates the credibility ruleEvidence Acts 1995Indeed under the uniform

Conclusion

.37In conclusion, expert opinion is deemed as either admissible or inadmissible, based on grounds as to whether it is reliable, relevant, credible or speculative. Further, the expert witness is only allowed to speak of facts that he personally perceives for his field of expertise, and not to draw inference from these facts. It has been noted that there are however two exceptions. First, a qualified expert may be permitted to state his opinion on an issue that calls for expertise in his field of specialization. Secondly, a non-expert witness is allowed to express his opinion on an issue that calls for any particular expertise as a means of expressing facts that he personally perceived. Further, two major rules underlie this rule. First, it has been explained that while any fact that the expert witness can prove relevant, his personal opinion is not, since his opinion has no probative value related to a subject that calls for expertise and is hence is not sufficiently relevant. Second, the expert witnesses are prevented from assuming the role of tribunal of facts. Within this rule, even though the tribunal of facts is at liberty to reject any opinions provided by the witness, may be tempted to accept the opinions instead of just drawing own inferences from the facts

Bibliography

  1. Articles/Books/Websites/Reports

Blume, John. Principles of Developing and Presenting Mental Health Evidence in Criminal Cases.< http://www.dpa.state.ky.us/library/manuals/mental/Ch04.html>

Cornell University. 2013. Rule 702. Testimony By Expert Witnesses. (2013) Retrieved from: <http://www.law.cornell.edu/rules/fre/rule_702>

Eisner, Donald. Expert Witness Mental Health Testimony: Handling Deposition And Trial Traps. (2010) American Journal Of Forensic Psychology, Vol 28, No 1, 2010 / 47

Groscup, jennifer, Penrods, Stevene, Studebaker, Christiana & Huss Matthew. The Effects Of Daubert On The Admissibility Of Expert Testimony In State And Federal Criminal Cases. (2002) Psychology, Public Policy, and Law, Vol. 8, No. 4, 339–372

Freckelton, Ian, Current Legal Issues in Forensic Psychiatry. (n.d.) <http://www.aic.gov.au/media_library/publications/proceedings/17/freckelton.pdf>

Grossman, Jonathan, Admissibility of Expert Opinion Testimony. (26 June 2013) <http://www.sdap.org/downloads/research/criminal/expert.pdf>

Judicial Commission of New South Wales. Sentencing Mentally Disordered Offenders: The Causal Link (Sydney, 2001) <http://www.judcom.nsw.gov.au/publications/st/st23>

Judicial Commission of New South Wales. The opinion rule — s 76, 2013. (26 June 2013)<http://www.judcom.nsw.gov.au/publications/benchbks/civil/opinion.html>

Legal Services Commission, Mental Incompetence And Mental Unfitness To Stand Trial. (2013).<http://www.lsc.sa.gov.au/dsh/ch14s06.php>

Traynor, Sally. Sentencing Mentally Disordered Offenders: The Causal Link (2002). <http://www.judcom.nsw.gov.au/publications/st/st23>

Wells, Hellen. The role of expert witnesses in psychological blow automatism cases.(Bond University, 2004)

Zapf, Patricia, Golding, Stephene, Roesch, Ronald. Legal, empirical and clinical aspects of the conceptualization and assessment of criminal responsibility and the insanity defense. In A. Hess & I. Weiner (Eds.) Handbook of Forensic Psychology, Third Edition. (New York, 2006) pp. 332-365.

Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994)

Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995).

General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)

Murphy v The Queen (1989) 167 CLR 94 at 110, 126–127

(1990) 171 CLR 30R v Falconer

[2006] NSWSC 658R v Jung

[2001] VSCA 149R v Leonboyer

R v Whyte [2006] NSWCCA 75

Straker v R (1977) ALR 103

Toohey v Metropolitan Police Commissioner [1965] AC 595

1 Sapir, Gil. Qualifying the Expert Witness: A Practical Voir Dire.(2007). <http://www.chm.uri.edu/forensics/courses/Appendix%20-%20forensic%20science%20&%20expert%20witness/Voir%20Dire.pdf>

2 Legal Services Commission, Mental Incompetence and Mental Unfitness To Stand Trial. (2013).<http://www.lsc.sa.gov.au/dsh/ch14s06.php>

3Judicial Commission of New South Wales. The opinion rule — s 76, 2013. (26 June 2013) <http://www.judcom.nsw.gov.au/publications/benchbks/civil/opinion.html>

5R v Falconer (1990) 171 CLR 30

6Wells, Hellen. The role of expert witnesses in psychological blow automatism cases.(Bond University, 2004)

7R v Leonboyer [2001] VSCA 149

9Freckelton, Ian, Current Legal Issues in Forensic Psychiatry. (n.d.) <http://www.aic.gov.au/media_library/publications/proceedings/17/freckelton.pdf>

10 Blume, John. Principles of Developing and Presenting Mental Health Evidence in Criminal Cases. <http://www.dpa.state.ky.us/library/manuals/mental/Ch04.html>

11 Groscup, jennifer, Penrods, Stevene, Studebaker, Christiana & Huss Matthew. The Effects Of Daubert On The Admissibility Of Expert Testimony In State And Federal Criminal Cases. (2002) Psychology, Public Policy, and Law, Vol. 8, No. 4, 339–372

12 Sapir, Gil. Qualifying the Expert Witness: A Practical Voir Dire. <http://www.chm.uri.edu/forensics/courses/Appendix%20-%20forensic%20science%20&%20expert%20witness/Voir%20Dire.pdf>

13Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995).

14General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)

15Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994),

16Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999).

17Cornell University. 2013.Rule 702. Testimony By Expert Witnesses. (2013) Retrieved from: <http://www.law.cornell.edu/rules/fre/rule_702>

18Australian Law Reform Commission, The Opinion Rule and its Exceptions Opinion on an ultimate issue. (2013) <http://www.alrc.gov.au/publications/9.%20The%20Opinion%20Rule%20and%20its%20Exceptions/opinion-ultimate-issue>

19 Grossman, Jonathan, Admissibility of Expert Opinion Testimony. (26 June 2013) <http://www.sdap.org/downloads/research/criminal/expert.pdf>

20Grovel v Flavel (1986) 4 ACLC 654

21Grossman, Jonathan, Admissibility of Expert Opinion Testimony. (2013) <http://www.sdap.org/downloads/research/criminal/expert.pdf>

22Freckelton, Ian, Current Legal Issues In Forensic Psychiatry. (n.d.) <http://www.aic.gov.au/media_library/publications/proceedings/17/freckelton.pdf>

23R v Whyte [2006] NSWCCA 75

24
R v Kontinnen (1991) 56 SASR 114]

25 Sapir, Gil. Qualifying the Expert Witness: A Practical Voir Dire. <http://www.chm.uri.edu/forensics/courses/Appendix%20-%20forensic%20science%20&%20expert%20witness/Voir%20Dire.pdf>

26Straker v R (1977) ALR 103

27 Zapf, Patricia, Golding, Stephene, Roesch, Ronald. Legal, empirical and clinical aspects of the conceptualization and assessment of criminal responsibility and the insanity defense. In A. Hess & I. Weiner (Eds.) Handbook of Forensic Psychology, Third Edition. (New York, 2006) pp. 332-365.

28 Eisner, Donald. Expert Witness Mental Health Testimony: Handling Deposition And Trial Traps. (2010) American Journal Of Forensic Psychology, Vol 28, No 1, 2010 / 47

29Toohey v Metropolitan Police Commissioner [1965] AC 595

30Judicial Commission of New South Wales. Sentencing Mentally Disordered Offenders: The Causal Link (Sydney, 2001) <http://www.judcom.nsw.gov.au/publications/st/st23>

31Wells, Hellen. The role of expert witnesses in psychological blow automatism cases.(Bond University, 2004)

32
Murphy v The Queen (1989) 167 CLR 94 at 110, 126–127

33 Freckelton, Ian, Current Legal Issues in Forensic Psychiatry. (n.d.) <http://www.aic.gov.au/media_library/publications/proceedings/17/freckelton.pdf>

34 Judicial Commission of New South Wales. Sentencing Mentally Disordered Offenders: The Causal Link (Sydney, 2001) <http://www.judcom.nsw.gov.au/publications/st/st23>

35Australian Law Reform Commission, The Credibility Rule and its Exceptions Expert evidence going to credibility. (2012). <http://www.alrc.gov.au/publications/12.%20The%20Credibility%20Rule%20and%20its%20Exceptions/expert-evidence-going-credibility>

36Toohey v Metropolitan Police Commissioner [1965] AC 595

37Wells, Hellen. The role of expert witnesses in psychological blow automatism cases.(Bond University, 2004)