Cross Examination and How Psychological Evidence Can Assist Judicial Decision Making

Cross examination and how psychological evidence can assist judicial decision making

Leslie Cuthbert Recorder, Tribunal Judge, Solicitor-Advocate and Trainer Who am I? 1) A lawyer;

3) A Tribunal Judge chairing hearings under the Mental Health Act, in relation to children with Special Educational Needs and Disability and in regards to people with welfare benefits;

4) A Legally Qualified Chair for the Police Misconduct Panel and a former Panel Chair for the Fitness to Practise Committee of the Nursing and Midwifery Council;

5) An Adjudicator for Companies House;

6) A Road User Charging Adjudicator;

7) A trainer of investigators, lawyers and judges;

8) Managing Director of a company specialising in Investigative Interviewing Learning Outcomes

• Provide an overview of the role and responsibilities of an expert in criminal or civil proceedings.

• Consider whether expert witness testimony can and should always be relied upon, whether decision makers can disagree with the evidence of an ‘expert’ and how much impact/influence expert witnesses have.

• Identify how psychology is having an impact on judicial decision-making. Two types of witness

A Witness of Fact and an Expert Witness. WhatThe majority is ofa witnesses witness are witnesses of of fact? fact in that they give evidence of what they have:

SEEN HEARD TASTED TOUCHED SMELT FELT (AS IN FEELINGS) and DONE What is an ‘expert’? A person who, through special training, study or experience, is able to furnish the Court, tribunal or oral hearing with scientific or technical information and opinion which is likely to be outside the experience and knowledge of a Judge, magistrate, member, or jury. All evidence needing to be both relevant and admissible. Witness of Fact v Expert

Witness of Fact Expert Witness

Seen Facts

Heard +

Tasted/Touched/Smelt Specialist Knowledge

Felt =

Done OPINION What is a fact?

Various definitions exist – “a piece of information about circumstances that exist or events that have occurred” “something known to be true: something that can be shown to be true, to exist, or to have happened”.

8 What is an assumption?

Definition:

“something taken for granted: something that is believed to be true without proof “

9 Text:

Smith, a psychologist with the Trust, was scheduled for a meeting in Khan’s office to discuss an incident of seclusion at 09:00 hours. On the way to that office Smith slipped on a freshly waxed floor and, as a result, received a badly bruised leg. By the time Khan was notified of the accident, Smith was on the way to hospital for x-rays. Khan called the hospital to enquire, but no one there seemed to know anything about Smith. It is possible that Khan called the wrong hospital.

10 • Having read the paragraph above please now mark in the table below whether each statement in the table is either a fact or an assumption when considered in light of the paragraph.

• Each statement can only be a fact or an assumption not both.

11 Fact Ass’n

1. Mr Smith is a psychologist

2. Smith was supposed to meet with Khan

3. Smith was scheduled for a 9 o’clock meeting

4. The accident occurred on the Trust’s premises

5. Smith was taken to hospital for x-rays

6. No one at the hospital that Khan called knew anything about Smith

7. Khan called the wrong hospital

12 Easy or difficult?

How did you find this exercise? Many people are surprised by the answers but let us look at them – one by one.

13 Fact Ass’n

1. Mr Smith is a psychologist X

2. Smith was supposed to meet with Khan X

3. Smith was scheduled for a 9 o’clock meeting X

4. The accident occurred on the Trust’s premises X

5. Smith was taken to hospital for x-rays X

6. No one at the hospital that Khan called knew anything about Smith X

7. Khan called the wrong hospital X

14 Surprised?

Did you start off the exercise with the assumption that there would be a mix of facts and assumptions?

This is exactly the sort of assumption that many people make in relation to a multiple choice test when they believe that not all the answers will be ‘C’

In this instance that assumption may well have influenced your decision making due to ‘confirmation bias’

15 Be careful of using absolute language in your evidence

• Always

• Never

• Surely

• Completely

• Obviously

• Clearly

All of these statements suggest that you may be missing part of the picture and falling into confirmation bias. Opinions are informed assumptions/conclusions

• Therefore they can and are ignored by courts. What do all experts need?

What do experts need above all else from those who instruct them?

CLEAR INSTRUCTIONS! How can you obtain clear instructions?

• Request a series of single questions and issues for you to consider and respond to. • Never allow yourself to simply be asked to 'double-check' another expert’s work as this will rarely result in a properly directed report • Ensure that you are given all the paperwork in the case. • Ensure you are updated promptly if any new information comes to light. • Ask for an early case conference with any other expert witnesses to discuss areas of disagreement. • You should never be asked a question for the first time when giving evidence by those who have instructed you. Preparation for Trial

Make sure you know: • the correct form of address for the Judge; • how to operate any technology in the hearing that is to be used during your evidence; • where the hearing is taking place and how to get there; • the layout of the hearing room and • whether you have the same set of paginated papers as the decision maker(s). The Criminal Procedure Rules and Civil Procedure Rules

Have rules which govern expert evidence. In both the expert’s duty is to the Court to give objective, unbiased opinions based within his or her expertise. The duty to the Court overrides any duty to the party instructing the expert. Further Guidance

Giving Evidence A 3 way conversation between the advocate, you and the decision maker(s).

How you stand/sit is therefore important to ensure that you are able to hear questions from the advocate but give your answer to the decision maker. 1) Examination-in-Chief 2) Cross-examination 3) Re-examination Credibility and Reliability of Experts

• Credibility (believability) and Reliability (inherent trustworthiness) of your evidence is made up of 3 elements:

• Honesty

• Accuracy/Consistency

• Impartiality Preparation for Questioning 1) Re-read your report to familiarise yourself with it but don’t try to memorise it. 2) Make sure all contemporaneous notes and documents you have referred to will be available in court. 3) Identify the essential issues in your evidence. 4) Identify any particular weaknesses in your assessment/evaluation. Cross-Examination Techniques

1) Leading, closed questions 2) Interruption 3) Rapid fire 4) Scatter gun 5) Multiple 6) Hypothetical Specific Strategic Lines for XX Experts

1) Challenge opinions they express outside of their area of expertise 2) Challenge their expertise 3) Challenge their preparation/procedures 4) Challenge their assumptions 5) Embarrass them 6) Invite them to speculate 1) Challenge opinions you express outside of your area of expertise - many experts take the view that if they are able to express an opinion about something they can give an opinion about anything - e.g. CCTV analyst 2) Challenge your expertise - many expert witnesses may actually not be that special such that they cannot give an opinion e.g. Police analyst 3) Challenge your preparation/procedures - especially in relation to paperwork often experts will delegate work to others who may be less rigorous or have less expertise than the named 'expert' - e.g. Fire investigator 4) Challenge your assumptions - look to see if their opinion is actually building assumption upon assumption - e.g Meadow's law. Always consider alternative conclusions. 5) Seek to embarrass you - have leading textbooks/articles on the subject of your opinion with them and ask you to provide definitions of concepts which they can then challenge you on if this does not meet the 'dictionary' definition - e.g. Explain caution without aide-memoire 6) Invite you to speculate - suggest possible other facts which if correct might lead to a different opinion/conclusion

being drawn. 'Irrelevant' factors influencing judicial decisions Being tired

A recent study, published in Psychological Science, looked at sentencing decisions in the United States on “sleepy Monday” (the day after the switch to daylight saving time). Research* found that custodial sentences given on that Monday were consistently about 5 per cent longer than those given on the previous Monday and the subsequent Monday, and indeed on all other days of the year.

The researchers could find no other reason for the disparity. The effect was apparent even though the average amount of sleep lost due to daylight saving time by each judge is a maximum of one hour. The study suggests that if the judge is more tired, the sentence imposed will be even tougher.

* by Kyoungmin Cho and Christopher M Barnes, of the University of Washington, and Cristiano L Guanara, of the University of Virginia 'Irrelevant' factors influencing judicial decisions

Being tired/hungry

In 2011 scientists analysed parole board decisions by Israeli judges. The study looked at more than 1,000 decisions by 8 Israeli judges in 50 days of hearings over a 10-month period. The judges worked for 3 sessions a day, with a morning snack break and a break for lunch.

The researchers concluded that as judges became hungry and thirsty, their decisions were more severe.

At the beginning of each session, a prisoner had a 65% chance of winning parole. This declined until it reached almost zero by the end of the session, and then returned — after the break — to about 65% at the beginning of the next session, during the course of which the prospects of success again receded. The pattern applied to every judge.

The results could not be explained by other factors such as the severity of the crime, the length of time the prisoner had been in custody or his or her ethnicity.

'Irrelevant' factors influencing judicial decisions Unexpected results of your favourite team's most recent match/game

In research published in 2016 it was found that judicial decisions in the state of Louisiana are affected by unexpected losses by the local college football team (that is American football, not soccer). In the days after an unexpected loss by the LSU football team sentencing by juvenile court judges between 1996 and 2012 was 7 per cent higher than average. This figure doubled if the judge had graduated from LSU!

Wins by the LSU football team had no effect on sentencing. Nor did expected losses. It was the unexpected disappointment that the judges carried into the courtroom, and which appeared to influence sentencing decisions.

[It was further concluded that the results cannot be explained by the reaction of defendants or attorneys to the football results...]

* by Ozkan Eren and Naci Mocan, of Louisiana State University (LSU) Anchoring German judges with an average of more than 15 years of experience on the bench first read a description of a woman who had been caught shoplifting, then rolled a pair of dice that were loaded so that every roll resulted in either a 3 or a 9.

As soon as the dice came to a stop, the judges were asked whether they would sentence the woman to a term in prison greater or lesser, in months, than the number showing on the dice.

Finally, the judges were instructed to specify the exact prison sentence they would give to the shoplifter.

On average, those who had rolled a 9 said they would sentence her to 8 months; those who rolled a 3 said they would sentence her to 5 months; the anchoring effect was 50%.

(Kahneman, Daniel. 2011. Thinking, Fast and Slow. pp. 125-126.) Anchoring - demands

"Accomplished trial judges with an average of more than 15 years of experience were influenced by sentencing demands, even if the demands were made by non-experts."

Judges who were asked to impose a sentence of 34 months gave final sentences that were almost 8 months longer than judges who received a low demand of 12 months.

Notably, this influence occurred although both demands were explicitly made by a non-expert: a computer science student in the role of the prosecutor.

(Englich & Mussweiler, 2001) Questions?

If you have been, thank you for listening. Contact

Linked In - https://uk.linkedin.com/pub/lesl ie-cuthbert/4/794/660 E-mail: [email protected] Telephone: +447973-325375