Negotiating Proximity: Expert Testimony and Collective Memory in the Trials of Environmental Activists in France and the United Kingdom

This article analyzes the role of expert witness testimony in the trials of social movement actors, discussing the trial of the “Kingsnorth Six” in Britain and the trials of activists currently mobilising against airport construction at Notre Dame des Landes in western France. Though the study of expert testimony has so far overwhelmingly concentrated on fact‐finding and admissibility, the cases here reveal the importance of expert testimony not simply in terms of legal argument, but in “moral” or political terms, as it reflects and constitutes movement cognitive praxis. In the so‐called climate change defence presented by the Kingsnorth Six, I argue that expert testimony attained a “negotiation of proximity,” connecting different types of contributory expertise to link the scales and registers of climate science with those of everyday understanding and meaning. Expert testimony in the trials of activists in France, however, whilst ostensibly able to develop similar bridging narratives, has instead been used to construct resistance to the airport siting as already proximate, material, and embedded. To explain this, I argue that attention to the symbolic, as well as instrumental, functions of expert testimony reveals the crucial role that collective memory plays in the construction of both knowledge and grievance in these cases. Collective memory is both a constraint on and catalyst for mobilisation, defining the boundaries of the sayable. Testimony in trials both reflects and reproduces these elements and is a vital explanatory tool for understanding the narrativisation and communication of movement identities and objectives.     

Social science in court

This article discusses the role of social science in legal proceedings with special attention to the ethical situation of the expert psychologist asked to testify about the reliability of an eyewitness identification. It argues that in this area as in others one cannot discuss the ethics of expert psychological testimony without attending to the quality of the research and theory on which the testimony is based. It also identifies as considerations that bear on the propriety of such testimony the information the fact finder is likely to receive in its absence and the factual guilt of the defendant. The paper goes on to discuss the relationship between law and social science more generally. It argues that ultimately courts do and should have the last word regarding the place of social science in legal proceedings.     

The Impact of Daubert on the Admissibility of Forensic Anthropology Expert Testimony

Forensic anthropologists anticipated a significant impact from the 1993 Supreme Court Daubert decision, which addressed the standard of admissibility for expert testimony. In response, many forensic articles cited Daubert in the search for objective techniques or a critique of established subjective methods. This study examines challenges to forensic anthropological expert testimony to evaluate whether Daubert has actually affected the admissibility of such testimony. Thirty cases were identified that addressed the admissibility of the testimony, including 14 cases prior to Daubert and 16 after Daubert. Examination of these cases indicates that post‐Daubert cases do not result in more exclusions. Yet, this lack of exclusions may instead be viewed as a manifestation of the field's overall surge toward more objective and quantifiable techniques in a self‐regulating response to Daubert.     

Setting the Record Straight: Comment on Gurley,Piechowski, Sheehan,and Gray (2014) on the Admissibility of the Rorschach Performance Assessment System (R-PAS) in Court

Gurley et al. (Psychological Injury and Law 7:9–17, 2014) express reservations about the admissibility of testimony based on the Rorschach Performance Assessment System (R-PAS) in court. They question whether there is sufficient evidentiary foundation in the underlying psychometrics and adequate general acceptance among psychologists for R-PAS-based testimony to meet either the Daubert or Frye criteria for admissibility and also raise doubts about how well it meets the criteria for the use of forensic tests proposed by Heilbrun (Law and Human Behavior 16:257–272, 1992). This invited comment addresses their concerns about the admissibility of R-PAS-based testimony and corrects some erroneous statements about the psychometrics of R-PAS and the pertinent empirical literature. Gurley et al. characterize R-PAS as being in competition with the established Comprehensive System (CS; Exner 2003), though we clarify that it is actually an evolutionary development from the CS and designed to be a replacement for it. We also point out how their conclusion that R-PAS-based forensic testimony may be hazardous or premature is based on an insufficient familiarity with the R-PAS scientific and professional literature, a misinterpretation of the Frye and Daubert evidentiary standards, and a mischaracterization of several of Heilbrun’s (Law and Human Behavior 16:257–272, 1992) criteria for the use of tests in forensic testimony.     

Meeting a Forensic Podiatry Admissibility Challenge: A Daubert Case Study

This article is an introduction to the United States Supreme Court's standard of admissibility of forensic evidence and testimony at trial, known as the Daubert standard, with emphasis on how this standard applies to the field of forensic podiatry. The author, a forensic podiatrist, provided law enforcement with evidence tying a bloody sock‐clad footprint found at the scene of a homicide to the suspect. In 2014, the author testified at a pretrial hearing, known as “a Daubert hearing,” to address the admissibility of this evidence in court. This was the first instance of forensic podiatry being the primary subject of a Daubert hearing. The hearing resulted in the court ordering this evidence admissible. The expert's testimony contributed to the suspect's conviction. This article serves as a reference for forensic podiatrists and experts in similar fields that involve impression evidence, providing evidentiary standards and their impact on expert evidence and testimony.     

Spontaneous hypnosis in the forensic context

"Hypnosis" denotes either specific phenomena (altered volition, perception, cognition, and recall) or interpersonal transactions that often elicit them. Basic research leads to paradox: hypnosis is validated, and shown to be dissociative in essence, at the same time that neither its phenomena nor transactions can be separated from those of everyday living without logical absurdity. This paradox can be resolved by assuming that consciousness and volition are complex, occurring simultaneously at many levels in the same waking individual. Hypnotic-like phenomena and transactions occur spontaneously, in either covert or overt forms. The former are pervasive, whereas the latter are often associated with psychological trauma. Forensic implications are twofold: for criminal responsibility, and the reliability of eyewitness testimony. Hypnotic-like states and transactions are rarely affirmed as an insanity defense because at some level these subjects are aware of what they are doing and why. Diminished capacity and mitigation of sentence are more appropriate defense strategies. Several conflicted traditions of case law have evolved to protect eyewitness testimony from hypnotic-like distortions in cognition, perception, and memory that can occur either during or outside of formal hypnotic procedures. These include the admissibility of posthypnotic testimony, due process safeguards at eyewitness identification procedures, and the admissibility of expert testimony on the findings of eyewitness research. These areas are inseparable from one another and demand a systematic coordinated approach.     

Forensic Science

Scientific evidence is often more reliable than other types of evidence commonly used in criminal trials – i.e., eyewitness identifications, confessions, and informant testimony. Nevertheless, despite its obvious value, forensic science has not always merited the term "science." Three developments in the 1990s focused attention on its shortcomings: the advent of DNA profiling, the Supreme Court's "junk science" decision, and a number of wellpublicized crime laboratory scandals. In light of these developments, and in order to take full advantage of the power of forensic science to aid in the search for truth, a number of reforms are needed: Crime laboratories should be accredited, lab procedures should be standardized, and basic research needs to be conducted on many commonly used techniques. Court procedures also require improvement: Defense experts should be more readily available to indigent defendants, and more comprehensive pretrial disclosure of the substance of expert testimony should be provided.     

Argument from Expert Opinion as Legal Evidence: Critical Questions and Admissibility Criteria of Expert Testimony in the American Legal System*

Abstract. While courts depend on expert opinions in reaching sound judgments, the role of the expert witness in legal proceedings is associated with a litany of problems. Perhaps most prevalent is the question of under what circumstances should testimony be admitted as expert opinion. We review the changing policies adopted by American courts in an attempt to ensure the reliability and usefulness of the scientific and technical information admitted as evidence. We argue that these admissibility criteria are best seen in a dialectical context as a set of critical questions of the kind commonly used in models of argumentation.     

The twilight zone between scientific certainty and legal sufficiency: should a jury determine the causation of schizophrenia?

In lawsuits involving complex scientific issues of causation, dispute resolution requires that a final decision be reached in each case, regardless of whether science is able to provide definitive answers to the questions of causation raised at trial. Proving causation before science has is a concept that scientists may find disconcerting and foreign to some of their basic assumptions. This paper explores the foregoing issues, discusses medical versus legal concepts of causation, outlines the legal tests for admissibility of novel scientific evidence (including Federal Rule of Evidence 702 and the Frye test of general acceptance by the relevant scientific community), and presents a toxic tort case in which expert psychiatric testimony addressed the issue of causation of schizophrenia. The paper articulates concerns about the "misleading aura of certainty" posed by scientific evidence and the burden of decision making that is cast upon the legal system in such scientific issue cases.     

The over-citation of Daubert in forensic anthropology

The 1993 US Supreme Court decision Daubert v. Merrell Dow Pharmaceuticals, Inc. presented new guidance for the judicial assessment of expert witness evidence and testimony in the determination of admissibility. Despite the rarity of admissibility challenges to forensic anthropology evidence, Daubert is frequently cited in published forensic anthropology research. This study undertook a qualitative thematic analysis of forensic anthropology articles published in the Journal of Forensic Sciences to assess why authors continue to cite Daubert and express concerns over potential exclusion. The results show a significant increase in the number of articles that cite legal admissibility standards over time (p < 0.001). Authors frequently cite these standards to contextualize their results within the Daubert framework or to justify the need for their research. Notably, many articles present Daubert as a constraining force, misinterpreting the guidelines as rigid criteria or that they require methods to be strictly quantitative. However, Daubert was intended to be a flexible tool for judges—not a standard or instruction for scientists. While it was reasonable to reflect on the scientific rigor of methods in the wake of the Daubert decision, a new perspective is warranted in which forensic anthropologists shift their focus from trying to “satisfy” admissibility guidelines to adopting quality assurance measures that minimize error and ensure confidence in analytical results, and developing and using methods that are grounded in good science—which is important regardless of whether or not the results are ever the subject of a trial.     

Truth and Justice, Inquiry and Advocacy, Science and Law

Abstract. There is tension between the adversarialism of the U.S. legal culture and the investigative procedures of the sciences, and between the law's concern for finality and the open‐ended fallibilism of science. A long history of attempts to domesticate scientific testimony by legal rules of admissibility has left federal judges with broad screening responsibilities; recent adaptations of adversarialism in the form of court‐appointed experts have been criticized as “inquisitorial,” even “undemocratic.” In exploring their benefits and disadvantages, it would make sense to look to the experience of other legal systems.     

Evaluating science outside the trial box: applying Daubert to the Federal Sentencing Guidelines' criminal history score

A limited amount of research exists examining the ability of the Criminal History Score of the Federal Sentencing Guidelines (Guidelines) to achieve one of its most essential objectives: prediction of recidivism. Building on the work of Schopp [Schopp, R. (2001). Competency, condemnation, and commitment: An integrated theory of mental health law. Washington D.C.: American Psychological Association], it is suggested that the scientific admissibility framework and the underlying principles announced by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceutical [Daubert v. Merrell Dow Pharmaceuticals Inc., 507 U.S. 579, 113 S.Ct. 2786 (1993)] should be expanded beyond the constraints of the evidentiary admissibility phase of trial and should apply to legislative and administrative rules that have: a) an empirically testable purpose and b) a substantial impact on the rights of individuals. Such an analysis offers a useful mechanism for understanding the strengths and weaknesses of social science being used by legal institutions. Based upon a hypothetical Daubert analysis, the scientific validity of the Guidelines' Criminal History Score is assessed and demonstrated to be insufficient. The law and policy implications of this finding are discussed.     

Rape trauma syndrome

This article analyzes recent case law on the admissibility of rape trauma syndrome evidence. Because many rulings on the admissibility of this evidence have been based on judicial assumptions about human behavior, rather than on scientific evidence, we next describe psychological research relevant to concerns raised about its scientific reliability, helpfulness, and prejudicial impact. Following this review, we evaluate both the expert testimony provided and the judicial decisions in recent cases in light of current research. Finally, we provide suggestions for future psychological research that could 1 inform discussions of the admissiblity of rape trauma syndrome evidence.     

摇晃婴儿综合征:科学(与非科学)专家的一场真实交战

本文从科学和法律层面介绍了摇晃婴儿综合征的有关内容,就关于摇晃婴儿综合征的科学和非科学专家证言的可采性进行了评价,称在科学和非科学专家之间正在发生一场真实的交战。     

摇晃婴儿综合征:科学(与非科学)专家的一场真实交战

本文从科学和法律层面介绍了摇晃婴儿综合征的有关内容,就关于摇晃婴儿综合征的科学和非科学专家证言的可采性进行了评价,称在科学和非科学专家之间正在发生一场真实的交战.     

Forensic identification science evidence since Daubert: Part II--judicial reasoning in decisions to exclude forensic identification evidence on grounds of reliability

Many studies regarding the legal status of forensic science have relied on the U.S. Supreme Court's mandate in Daubert v. Merrell Dow Pharmaceuticals Inc., and its progeny in order to make subsequent recommendations or rebuttals. This paper focuses on a more pragmatic approach to analyzing forensic science's immediate deficiencies by considering a qualitative analysis of actual judicial reasoning where forensic identification evidence has been excluded on reliability grounds since the Daubert precedent. Reliance on general acceptance is becoming insufficient as proof of the admissibility of forensic evidence. The citation of unfounded statistics, error rates and certainties, a failure to document the analytical process or follow standardized procedures, and the existence of observe bias represent some of the concerns that have lead to the exclusion or limitation of forensic identification evidence. Analysis of these reasons may serve to refocus forensic practitioners' testimony, resources, and research toward rectifying shortfalls in these areas.     

Psychological Testimony and the <Emphasis Type="Italic">Daubert</Emphasis> Standard

In the legal system, mental health professionals are now a primary source for expert information. Because potentially every psychologist might be drawn into a legal situation, competency requires accommodation of the nexus between the legal system and professional ethics and standards. Three particular Supreme Court cases create a framework for testifying about psychological information. This article reviews those three cases, defines the commitment to evidence-based (scientific) testimony, and explains how psychological ethics and standards should be accommodated. It reviews the major issues that psychologists face in Daubert admissibility challenges. Finally, it makes pertinent recommendations to help avoid the pitfall in dealing with court.     

重复供述排除问题研究

一次非法取供,是否要对重复供述一排到底?重复供述问题在我国尤为突出,然而,法律和司法解释中并未明确重复供述的可采性。重复供述排除与否取决于先前的非法取供手段对重复供述的实际影响。基于我国实际,应当实行重复供述的分阶段排除方式,即原则上只排除非法取供发生后至确认前在同一诉讼阶段获取的重复供述。为了克服排除重复供述的障碍,应当允许重复取供,理顺公、检、法的关系,减少三机关的同质性。当然,最根本的举措是要建立激励为主的取供机制,调整形式主义的口供运用模式,怯除对非自愿供述的依赖。