Expert Evidence: The (Unfulfilled) Promise of <i>Daubert</i>

DeMatteo, David; Fishel, Sarah; Tansey, Aislinn

doi:10.1177/1529100619894336

Cited by 12 publications

(7 citation statements)

References 13 publications

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“…This review offers multiple insights for cross-examination. Expert testimony on Static-99R results can be highly persuasive to decision-makers (Elwood, 2019), yet flawed testimony and misuse are rarely challenged in courts (DeMatteo et al, 2019). Although expert witnesses have ethical obligations for training and continuing education to avoid misuse and error, attorneys have an important role in identifying scoring errors and misuses.…”

Section: Is It Legally Admissible?mentioning

confidence: 99%

Static-99R: Strengths, limitations, predictive accuracy meta-analysis, and legal admissibility review.

Helmus¹,

Kelley²,

Frazier³

et al. 2022

Psychology, Public Policy, and Law

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Most risk assessment scales are developed to broadly rank individuals according to their risk to reoffend, not to inform particular legal decisions. Consequently, there is almost always a gap between what the scale measures and the referral question. The present article discusses the most commonly used and researched risk assessment tool for individuals charged or convicted of sexual offenses: Static-99R. This review summarizes relevant history, and psychometric, applied, and legal admissibility information for those who use the scale or encounter its use in court. The first section outlines the development, purpose, and evolution of Static-99R. The second section summarizes interrater reliability and predictive validity. We conducted an updated meta-analysis of 56 studies, whereby Static-99R demonstrated moderate predictive accuracy (AUCs = .68 to .69). The third section discusses field issues. Last, we summarize the tool's admissibility across 85 legal cases, of which four resulted in inadmissibility and an additional 12 in partial admissibility. We provide suggestions for cross-examination in court. We outline how Static-99R meets Daubert criteria for legal admissibility. Although Static-99R has important limitations, we conclude that it can be useful and informative in legal decisions (caveats discussed) and is demonstrably better than the alternate of not using structured risk scales.

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Section: Is It Legally Admissible?mentioning

confidence: 99%

Static-99R: Strengths, limitations, predictive accuracy meta-analysis, and legal admissibility review.

Helmus¹,

Kelley²,

Frazier³

et al. 2022

Psychology, Public Policy, and Law

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“…The most troubling factor, per many courts and legal commentators, has been the focus on testability and error rates-but even this fear finds itself rooted in an emphasis on expert testimony as scientific and/or social scientific, with the particularized concern being raised in the space of psychology and the social sciences. 238 While judicial education-specifically in the domestic violence and Battered Women's Syndrome context-has been prioritized as a tool to help offset some of the risk that judges might exclude evidence on the grounds of their lack of familiarity with the "scientific validity" of a source, 239 the ever-growing concern regarding the proliferation of "junk science"-a phenomenon whereby courts rely on data points that have been unsubstantiated and unsupported 240 -has led to the drawing of almost violently exclusive boundaries in terms of the permissibility of expert testimony. It is scientific and occasionally social scientific evidence that is permitted to enter the courtroom, reifying not only the improper conclusions that "non-scientific" expertise is inherently "junk" motivated by sociopolitical ideological biases, but also the faulty argument that scientific inquiry represents "pure truth" uninflected by sociopolitical ideological biases.…”

Section: A Institutionalize Evidentiary Testimony On Ritual Grief By ...mentioning

confidence: 99%

How the Conflation Of 'Inappropriate' Grief With Guilt Compromises The Sixth Amendment Right To Fair Trial

Chazen¹

2022

UCLA Criminal Justice Law Review

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On an imperfect American criminal legal landscape, evidence about a defendant's inability to appropriately perform grief about and/or towards a victim often colors how judges, juries, and the public understand their relationship to criminality. It is on this imperfect American criminal legal landscape that the subject of this paper-grief performance and its relationship to constructions of guilt-is born.I argue that a real ritual dissonance transpires when an individual loses someone close to them to a traumatizing form of death-that is, in an extremely violent or unexpected way. On the one hand, one's body finds itself expected to conform to social norms regarding grief and mourning. On the other, one's experience is so anomalous as to potentially make it unfathomable for them to do so. The resulting grief performance is one that is at once produced by the grieving self to process incomprehensible trauma and recognized by a perceiving community as a social oddity, a ritualized failure incapable of being understood by the surrounding community. Because the community cannot comprehend the griever's performance, suspicion begins to surround the griever. People begin to realize, "she did not cry"; "she was cold"; "she did cartwheels"; "she spoke on television"; "she spent exorbitant amounts of money," and so they assume she must have had a hand in orchestrating the death of the person close to her. This process can be understood as creating a "grief-guilt" complex, as improper grief performance produces and generates presuppositions of a person's guilt. * J.D. Candidate, Harvard Law School Class of 2022. Special thanks to Rebecca Richman-Cohen, who offered exceptional guidance throughout the writing process and whose course, 'Seeing Criminal Injustice' opened my eyes to how the language of law could be inflected by more than just written rules and doctrine. Thanks also to the faculty in the English and Religion Departments at Haverford College, who introduced me to the worlds of Performance, Ritual, Grief and Trauma Studies, and to whom I am deeply indebted. 157 Innocent UntIl Proven UngrIevIng 31. Arnold van Gennep, The Rites of Passage 10-11 (Monika R. Vizedom & Gabriel L. Caffee trans., Univ. of Chi. Press 1960). 32. So too do funerary rites have elements of separation, transition, and incorporationfor the deceased. First, in the separation stage, the deceased individual is demarcated as deceased and ritually prepared for burial. Second, in the liminal stage, she becomes a centerpiece in the process of worship, prayer, and memory, awaiting burial. And finally, in the incorporation stage, she is buried, allowed to be fully incorporated into the "community" of the lost.

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“…Likewise, governmental review boards have expressed similar concerns in criticizing the usage of certain sciences in court (National Research Council, & Committee on Identifying the Needs of the Forensic Science Community, 2009; PCAST, 2016). Given experts’ “tremendous power” in the courtroom to influence judges and jurors (DeMatteo et al, 2019, p. 129), these concerns are justified. Moreover, research supports these concerns, showing being hired by a particular side unintentionally biases experts toward that side (e.g., Murrie et al, 2009; Otto, 1989; Zusman & Simon, 1983), and experts intentionally may agree only to represent the side that is consistent with their preexisting biases (Neal, 2016).…”

Section: Adversarial Allegiancementioning

confidence: 99%

Testing the waters: An investigation of the impact of hot tubbing on experts from referral through testimony.

Perillo¹,

Perillo²,

Despodova³

2021

Law and Human Behavior

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Two alternatives to traditional adversarial expert testimony are concurrent testimony, in which opposing experts collaborate on a report to the court and testify together, and court-appointed testimony. Concurrent testimony did not reduce or eliminate experts' initial bias in favor of the prosecution or defense when rendering judgments during a simulated criminal responsibility hearing; court-appointed experts' judgments remained moderate, but that may reflect an aggregation of biased judgments rather than attenuation of bias. Additional research examining concurrent testimony and other potential alternatives, such as joint conferences between opposing experts before examining evidence and writing reports, is necessary to help inform the legal system's efforts to minimize the undesirable effects of adversarial allegiance in trials.

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Expert Evidence: The (Unfulfilled) Promise of Daubert

Cited by 12 publications

References 13 publications

Static-99R: Strengths, limitations, predictive accuracy meta-analysis, and legal admissibility review.

Static-99R: Strengths, limitations, predictive accuracy meta-analysis, and legal admissibility review.

How the Conflation Of 'Inappropriate' Grief With Guilt Compromises The Sixth Amendment Right To Fair Trial

Testing the waters: An investigation of the impact of hot tubbing on experts from referral through testimony.

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