‘The witness who saw, /he left little doubt’: a comparative consideration of expert testimony in mental disability law cases in common and civil law systems

Abstract

The question of how courts assess expert evidence-especially when mental disability is an issue-raises the corollary question of whether courts adequately

Science in the court: pitfalls, challenges and solutions

“…[11,[13][14][15][16] Clark 4 or Harris. 5 The work of rights-based movements including the Innocence Project are premised, in part, on an underlying mistrust of the reliability of expert evidence introduced at trial and the role that forensic evidence, inter alia, plays in wrongly convicting the innocent, or indeed conversely contributes to a failure to convict the guilty [17,18]. Ironically, 'innocence fraud' is now being discussed under the auspices of an Innocence Audit [19].…”

“…De facto deference to the weight ascribed to forensic evidence in the courtroom or indeed to the opinions of experts is being consigned to the past. Shortfalls inherent in the current system include operational problems related to the efficiency of the justice system and the way it is administered [1], the admissibility of expert evidence [2], reliability tests [3] and structural problems including the influence of the evidence tendered by experts on the jurors [4], the adversarial nature of the system in common law jurisdictions [5], the bias of legal representatives [6] and flawed assumptions in forensic sciences [7][8][9][10].…”

“Where souls are forgotten”: Cultural competencies, forensic evaluations, and international human rights.

“…Yet, it is clear that it opens up for reconsideration the full panoply of issues discussed in this paper as they relate to persons with mental disabilities. If, by way of example, it appears that forensic psychologists participating in death penalty evaluations and trials provide substandard expert assistance—due to lack of cultural competency—then an important question of Convention compliance is raised (see Perlin, Birgden & Gledhill, 2009; see also Universal Declaration of Ethical Principles for Psychologists, 2008). For the “equal justice” principles embedded in the Convention to be meaningful, persons subject to forensic evaluations in criminal cases—capital cases and others—have a right to culturally competent evaluations as part of the trial and penalty phases processes 19…”

“…All participants in the forensic system must also understand the significance of international human rights as they affect cases of persons with mental disabilities (Perlin, 2007). Now that the United Nations Convention on the Rights of Persons with Disabilities (2006a) has been enacted (as of this writing, it has not yet been ratified in the United States, but that ratification is likely soon, see Perlin & Szeli, in press), it is essential that forensic witnesses understand the interplay between this body of rights and their role (Perlin, Birgden, & Gledhill, 2009), especially as it involves cultural competency questions.…”