Expert witness work - time to step up to the plate

David Crighton introduces a special feature

The UK and many other societies operate under the rule of law, meaning simply that various forms of, often highly formal, decision making are present. Psychology as a profession and psychologists as individuals have a potentially key role in assisting such decision making and doing so in the interests of justice. The early history of psychology is replete with examples of such contributions, and in the absence of this various types of injustice may follow. It is therefore a reasonable expectation that high-quality and evidence-based opinion will be available to inform legal decision making. Yet this is also an area that provokes personal and professional anxiety. The scrutiny, often public, of beliefs, practice and the basis for these may be uncomfortable. There are, though, clear benefits for psychology as a discipline and for individual psychologists in contributing more actively to such work. Such scrutiny may serve to drive up professional standards and active participation in legal decision making may drive the social and political contribution of psychology as a discipline.

The role of an expert witness is not the exclusive province of any one area or branch of psychology; the need for expert advice and guidance may indeed involve a wide range of psychological research and practice. Yet it is fair to say that many psychologists are anxious about becoming involved in this area, so much so that some may avoid such activities. The reasons why researchers and practitioners might not want to provide expert testimony to the courts, tribunals and other quasi-judicial bodies may appear self-evident. Less obvious are the reasons why psychologists should become more involved.

The role of the expert witness involves the point where recognised forms of specialist knowledge meet the systems that society uses to render decisions about issues that are felt to be important. Broadly, the rendering of fair judgements in this way is a key aspect of what we term ‘justice’. It includes issues such as crime, child custody and efforts to compensate individuals for being wronged. Psychologists and the discipline of psychology can and do contribute significantly to such processes. In doingso we can make the decisions reached more just. This is not an opportunity tobe missed. Yet it is probably a fair criticism to say that psychology as a discipline and psychologists as a group of professionals have not fulfilled our early promise with regard to giving expert witness testimony.

There is, however, evidence to suggest something of a renaissance in this area. This is vividly illustrated by the examples of expert witness work covered in this issue. Here the discipline of psychology has been central to improving the resolution of some of the most difficult questions we may face as a society. The social importance attached to these decisions is reflected in the way that these decision-making processes are delivered: everything about the Supreme Courts in London and Edinburgh are designed to signal this, and the status is mirrored to a greater or lesser extent throughout the varied systems of legal decision making.

Given the breadth of expertise that may be of benefit to the legal system, it is not sensible or indeed practical to set out specific training routes. Some specialist knowledge may only apply to one or two cases a year. Other forms of knowledge may be of routine value in many thousands of cases. Largely for this reason legal systems have tended to reserve the capacity to call the most appropriate experts, regardless of their training or background experience. Yet there are a number of key practice areas that cut across all areas and need to be addressed.

The first of these is the issue of motivation. At the outset it is worth being clear about why we undertake such work. For most psychologists, as for most lawyers, the focus will be a commitment
to serving the best interests of ‘justice’. Of reaching the fairest decision possible. Of balancing competing interests and needs as well as we can. It clearly parallels the professional commitment to serving the best interests of patients or clients. But it is distinct and broader, in that it generally requires considerations that go beyond the individual or indeed organisational interests to a much broader consideration of the interests of society.

Indeed, the requirements of an expert witness differ significantly from the day-to-day work of most psychologists, and you must make sure you understand what is required. The first duty of the psychologist as an expert witness is to give a fair and accurate presentation of their specialist knowledge. Lawyers are, quite properly, there to advocate for their client. They have a professional duty to do their best for their client, within whatever system of rules they are working. As an expert, a psychologist is very definitely not there to do this, and in fact must not act as an advocate. This may be challenging at times. In settings such as the family courts the issues may be highly contentious, emotionally charged and involve difficult issues like the risk of abuse. In other cases it may appear that individuals have been the victim of callous employers or state-based abuses. Yet such examples serve to stress the importance of continuously seeking to maintain a degree of professional detachment. The role of a psychologist as an expert witness is to describe and explain the relevant specialist evidence in a fair and balanced manner.

Be well prepared. This risks stating the obvious, but it remains the case that psychologists can and do attend as expert witness in the absence of adequate preparation. Being adequately prepared covers the entire process of acting as an expert witness. It starts with the initial instructions to undertake such work through to any post-case queries that may arise. The term ‘instructions’ refers to an initial brief to undertake work. Typically this will be from an individual’s legal representative or from a court or tribunal directly, setting out what they want from the psychologist. This may include specific questions to be addressed or may be more broadly framed. It should also generally include the arrangements for funding the work and when payment is likely to be made. This is an important opportunity to address any areas that are unclear and to decide whether you are in fact the appropriate expert to give advice.

Having accepted instructions, preparation involves conducting an appropriate level of research and/or assessment work. It is equally inappropriate to accept an instruction to act as an expert on the basis of undertaking an inadequate or an excessive level of work. This forms the basis of preparing on an open, honest and professionally ethical basis. In preparation one should draw on an appropriate range of materials and should actively seek additional information and clarification where you need it. Seeking corroborative evidence can be particularly important in a number of cases. It is increasingly common for courts or tribunals to issue specific instructions in the area of expert testimony, and this is also a key area of preparation. Such instructions may set limits to the testimony or, where two or more experts are involved, may require that they confer to reduce the areas of disagreement to a minimum. Such instructions serve a number of functions, and these may include efforts to contain the stresses on participants and the costs involved in the process. Psychologists providing expert testimony have legal and ethical duties to comply with such instructions.

Most courts and tribunals rely heavily on written reports, and this is a trend that has increased over recent years. Providing a well-written and accurate report is therefore central to good preparation. Any report needs to strike a balance between giving sufficient information and avoiding over-disclosure or excessive detail. This is perhaps best illustrated in relation to psychometric and structured clinical assessments, but it also extends more broadly. In seeking an expert report a doctoral dissertation is not required, but a summary that can be readily understood by an intelligent lay reader is.

Give your views in a measured and professional manner. The aspect of expert testimony which generally concerns psychologists most is the provision of oral testimony. This is perhaps not a surprise. There is little in the general training of psychologists that is designed to prepare them for this. The role and methods of oral explanation, communication and disputation remains central to the training of lawyers. There are differences across higher-education institutions, but in general such aspects of teaching and training have, at least until recently, seen a progressive decline. Many if not most psychologists will be more comfortable in a laboratory or clinic, than settings which involve giving and defending views orally. Those involved in the courts and tribunals will generally be aware of this and make allowances. Expert witnesses are not expected to perform at the levels required of legal representatives. What is expected of expert witnesses is that they address any instructions given. They will also be expected to respect the process, know their area of expertise, the detail of their report and be able to answer relevant questions thoughtfully. In giving testimony, psychologists will be expected to give a full and honest account of their area of expertise and their conclusions.

Do not change your opinion too readily. In most walks of life we can change our views without difficulty. Part of the scientific process involves the progressive refinement of ideas in the light of emerging evidence. To paraphrase the famous economist  John Maynard Keynes, when the evidence changes my opinion changes. Here though, changes are not casual but depend on the credible evidence rather than a simple wish to agree or defer to perceived power and authority. In the expert witness role casually changing your view will rarely if ever be well received. It is expected that in preparing a report the opinions formed will be adequately based and will therefore be robustly held. Where new evidence emerges which requires a change of view, then a high degree of formality is expected and required. Typically this involves advising the instructing party at the earliest opportunity.  

So you need to be clear about what you think and why you think it. This could be considered under the area of good preparation, but is so central that it probably warrants separate consideration. Legal representatives will seek to examine and cross-examine expert testimony. This forms a key part of their professional expertise. From a witness perspective though this will generally involve a focus on the logical basis of what is stated and the evidence that underpins it. This can be seen as serving two purposes. Firstly, it seeks to make even the most difficult specialist areas intelligible to non-specialists. Secondly, it makes it difficult to hide weaknesses in an argument behind technical language, concepts and jargon.

In common with other areas of specialist knowledge it is common in psychology not to continually think about fundamental assumptions. Paradoxically this is something that may become more pronounced with greater experience and training, where the assumptions become less consciously attended to. Thinking through and giving an honest account of such assumptions is likely to make oral testimony much more straightforward.

If in doubt ask the lawyers about procedural issues. There is perhaps a tendency for those new to expert testimony to be overly focused on the procedure and ‘theatre’ of the process. Much of this may appear arcane, and in some settings much would still be familiar to Shakespeare and Newton. It is worth being clear at the outset that few psychologists have expertise in law or legal procedure and that this is not expected. If in doubt, you should not be afraid to ask for guidance. I hope that this special feature provides some of that guidance and information on where to find out more, while whetting your appetite for expert witness work.

David Crighton is Chair of the British Psychological Society Expert Witness Advisory Group

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