Kumho, Daubert, and the nature of scientific inquiry: implications for forensic anthropology

In the last 15 years, the US Supreme Court has implemented major changes concerning the admittance of expert testimony. In 1993, Daubert v. Merrell Dow Pharmaceuticals superseded the Frye ruling in federal courts and established judges, not the scientific community, as the gatekeepers regarding the credibility of scientific evidence. In 1999, a lesser-known but equally important decision, Kumho Tire v. Carmichael, ruled that technical expert testimony needed to employ the same rigor as outlined in Daubert, but experts can develop theories based on observations and apply such theories to the case before the court. Anthropology has never been defined as a hard science. Yet, many recent publications have modified existing techniques to meet the Daubert criteria, while none have discussed the significance of Kumho to anthropological testimony. This paper examines the impact of Daubert and Kumho on forensic anthropology and illustrates areas of anthropological testimony best admitted under Kumho's guidance.     

72例情感性精神障碍司法精神病鉴定分析

目的 探讨情感性精神障碍患者作案特征.方法 对杭州市公安局安康医院2000-2004年鉴定的72例情感性精神障碍案例进行分析.结果 情感性精神障碍患者作案与发作次数有一定关联性,躁狂症与抑郁症危害行为有统计学意义(P<0.01).情感性障碍患者作案特征与精神分裂症不同,主要是作案的病理性动机较少,现实动机较多.结论 反复发作是情感性精神障碍患者作案的预警性指标.在作案特征上与精神分裂症有各自不同的特点,可能与病因、病情发展、症状表现和严重程度等差异有关.     

The Impact of Eyewitness Expert Evidence and Judicial Instruction on Juror Ability to Evaluate Eyewitness Testimony

It has been argued that psychologists should provide expert evidence to help jurors discriminate between accurate and inaccurate eyewitness identifications. In this article we compare the effects of judicial instruction with expert evidence that is either congruent or incongruent with the ground truth, focusing on juror ability to evaluate “real” eyewitness evidence. In contrast to studies which have employed “fictional” eyewitness designs, we found no appreciable effect of either congruent or incongruent expert evidence on participant-juror sensitivity to eyewitness accuracy. We discuss the role of methodology on the inferences and conclusions that can be made regarding the impact of eyewitness expert evidence.     

Protecting Eyewitness Evidence: Examining the Efficacy of a Self-Administered Interview Tool

Given the crucial role of eyewitness evidence, statements should be obtained as soon as possible after an incident. This is not always achieved due to demands on police resources. Two studies trace the development of a new tool, the Self-Administered Interview (SAI), designed to elicit a comprehensive initial statement. In Study 1, SAI participants reported more correct details than participants who provided a free recall account, and performed at the same level as participants given a Cognitive Interview. In Study 2, participants viewed a simulated crime and half recorded their statement using the SAI. After a delay of 1 week, all participants completed a free recall test. SAI participants recalled more correct details in the delayed recall task than control participants.     

患者死亡医疗纠纷司法鉴定24例分析

目的探讨涉及患者死亡医疗纠纷的过错成因,分析其司法鉴定的切入点。方法收集了涉及患者死亡且多次鉴定的医疗纠纷案例24例,从一般情况、科室分布、责任程度划分以及差错分析等方面进行了总结和分析。结果此类案例在技术方面存在患者自身疾病隐匿、接诊部门处理过程简单、科室之间配合不力、紧急情况下措施不果断等问题。此外,告知义务的履行、转诊时机把握以及常备抢救设施的维护等管理方面漏洞也是医疗纠纷的多发环节。结论本文可为进行此类医疗纠纷的司法鉴定提供帮助,也为避免纠纷的发生提供参考。     

Daubert,Cognitive Malingering,and Test Accuracy

Daubert v. Merrell Dow Pharmaceuticals (1993) held that trial judges should permit expert scientific testimony only when the reasoning or methodology underlying the testimony is scientifically valid, and ... properly can be applied to the facts in issue. Vallabhajosula and van Gorp (V&vG, 2001) have suggested that when the Daubert standard is applied to tests for malingered cognitive deficits, courts should deem admissible only results that meet this mathematical standard: assuming a pretest probability of .3, a positive score on the malingering test should yield a posttest probability of at least .8. This paper shows that V&vG's criterion may lead to misunderstandings about the kind of information malingering measures provide. After reviewing cases that have discussed both the Daubert decision and malingered cognitive deficits, this paper uses data from the Test of Memory Malingering (T. N. Tombaugh, 1996) to provide a general characterization of the mathematical properties of malingering measures. The paper then describes how pretest knowledge about malingering is combined with knowledge about a test's performance to generate a posttest probability of malingering. The results can help mental health experts respond to Daubert-inspired challenges to conclusions based on malingering measures.     

Jurors' Perceptions of Adolescent Sexual Assault Victims Who Have Intellectual Disabilities

Children and adolescents with intellectual disabilities are especially likely to be sexually abused. Even so, their claims are not likely to be heard in court, possibly because people assume that jurors will not believe them. We tested this assumption in a mock-trial study in which 160 men and women watched videotaped excerpts from an actual trial. As predicted, when the 16-year-old sexual assault victim was portrayed as mildly mentally retarded instead of as having average intelligence, jurors were more likely to vote guilty and had more confidence in the defendant's guilt; considered the victim to be more credible and the defendant to be less credible as witnesses; and rated the victim as more honest, less capable of fabricating the sexual abuse accusation, and less likely to have fabricated the sexual abuse accusation. Men and women were affected similarly by the disability manipulation, but women were generally more pro-prosecution in their case judgments and perceptions than were men. Finally, jurors who had more liberal views toward persons with disabilities were more likely than other jurors to make pro-prosecution judgments on measures of guilt. Implications for psychological theory and the law are discussed.     

论民事证据的认定及自由裁量权

证据制度是民事诉讼的核心。文章探讨了证人证言和鉴定结论这两种证据的具体认定规则;进而通过分析认为,相对于"主观真实"和"客观真实"而言,"法律真实"的证明要求有其积极的价值,但也容易导致打着"自由裁量"和"自由心证"的幌子行擅断和鱼肉百姓之实,以致影响法律的尊严,破坏法制的统一。文章对证人证言和鉴定结论证据的认定以及法官在证据认定中的自由裁量权均提出了相应的完善建议。     

Jurors' knowledge of battered women

An increasing number of psychologists with expertise in the area of battered women are participating in the legal system as expert witnesses and occasionally testify on behalf of a battered woman who has injured or killed her partner. Testimony about the battered woman syndrome has been offered to help the jury understand why the defendant reasonably perceived that she was in danger of harm. One of the requirements of expert testimony is that it be beyond the common understanding of the jury. Many commentators assume that jurors are uninformed or misinformed about battered women and, thus, that expert testimony is necessary to educate them. This study evaluated what jurors know about violent relationships. Approximately 300 jurors read scenarios about spousal violence and answered a questionnaire dealing with circumstances surrounding such abuse. Results suggest that on certain dimensions of spousal violence, jurors are aware of empirical research findings. On other dimensions, jurors are less well-informed and could potentially benefit from the testimony of an expert.     

Children's Conceptual Knowledge of Lying and Its Relation to Their Actual Behaviors: Implications for Court Competence Examinations

Child witnesses must undergo a competence examination in which they must show appropriate conceptual understanding of lying and truth-telling, and promise to tell the truth. Three experiments (Ns = 123, 103, 177) were conducted to address the assumptions underlying the court competence examination that (1) children who understand lying and its moral implications are less likely to lie and (2) discussing the conceptual issues concerning lying and having children promising to tell the truth promotes truth-telling. Both measures of lying and understanding of truth- and lie-telling were obtained from children between 3 and 7 years of age. Most children demonstrated appropriate conceptual knowledge of lying and truth-telling and the obligation to tell the truth, but many of the same children lied to conceal their own transgression. Promising to tell the truth significantly reduced lying. Implications for legal systems are discussed.