Battered woman syndrome (BWS) which is a syndrome resulting from prolonged violence and abuse of a woman by her partner that can induce a form of ‘learned helplessness’ characterized by an inability to stand up to the abuser, a feeling of dependence on the abuser, and an inability to withdraw from the situation.
In order to accept psychologists in courtroom, their testimony is very important. If expert testimony by psychologists is to be accepted then it needs to fulfill some purposes and help jurors in their decision-making. Although different emphases may be put on these questions depending upon the particular kind of testimony, there are issues, which certain issue is central to determining the admissibility of expert testimony.
Traditionally, four basic requirements govern the admissibility of expert testimony (United States v. Amaral, 1973):
1. The subject matter must be beyond the common understanding of the average juror or must assist the juror in understanding the evidence;
2. The expert must be sufficiently qualified so that his or her opinion or inference will aid the jury;
3. The evidence about which the expert testifies must be scientifically reliable and generally accepted in the scientific community; and
4. The probative value of the evidence must outweigh its prejudicial effects.
Another consideration is that, even these requirements are met; the trial judge has broad discretion in qualifying an expert and admitting his or her testimony.
However, some problems have been raised concerning each of these criteria for psychological evidence. The first concern relates to the requirement that the expert must be sufficiently qualified so that his or her opinion or inference will aid the jury. Haward (1981) and Loftus (1983) discuss the potential problems resulting from lawyers’ and judges’ lack of awareness of the differences in training between one branch of psychology and another. As a result of their naivete, lawyers may ask their psychologists to testify on areas with which they are generally unfamiliar. For example, a forensic psychologist asked to testify on educational area. In such situation, the psychologist may indeed be unqualified.
Another consideration is that, a person with education or experience in one field may be improperly asked to offer an opinion in an area outside of his or her expertise. For example, in case People v. White (1980) that related to the domestic violence, a physician in internal medicine who had had ‘occasion to treat battered women’ (p.1072) was not allowed to testify on battered woman syndrome. Even though he had treated battered women, he did not have special psychological expertise in the area and therefore could not be qualified as an expert witness.
From the above example, this situation can also apply to the case of eyewitness testimony. Research bearing on eyewitness performance comes both from specific studies utilizing an eyewitness paradigm and from psychological research on more general memory and perceptual processes, which these are related to the field in cognitive psychology. These studies allowed psychologists to reach a number of general conclusions about eyewitness performance, and cognitive psychologists who testify in an eyewitness case commonly discuss certain findings. If the expert is trained from industrial and organizational psychology, then the reliability and admissibility of the testimony may be deducted.
This issue is less problematic. Generally, however, an expert must undergo cross-examination, it is disadvantageous for the lawyers to try to qualify an ill-prepared person and thus the expert’s qualification are rarely at issue.
The second criterion is that the subject matter must be beyond the common understanding of the average juror or must assist the juror in understanding the evidence. Blackburn (1993) said that when evidence concerns matters relating to mental disorder, there is an acceptance that this is beyond most people’s everyday knowledge. However, in other areas of psychology concerning more normal behaviour, there is a debate whether experts are needed to give evidence.
Another consideration is that from research by Colman and Mackay (1993), they showed five examples of normal human behaviour that are demonstratively counter-intuitive in the sense that ‘ordinary, reasonable men and women’ generally misunderstand. These five examples can describe there are some problems of testimony in eyewitness. The five examples are the fundamental attribution error, obedience to authority, group polarization cognitive dissonance and bystander apathy, which are proved and accumulated evidence in social psychology. For example in the term of fundamental attribution error, research showed that ‘ordinary, reasonable men and women’ have a systematically biased understanding of normal human behaviour when external, situational factors play a significant part. Allegedly criminal acts often fall into this category, which suggested that jurors might not always be able to understand issues concerning mens rea (intention) purely on the basis of their common knowledge and experience of human behaviour.
These terms suggested that expert psychological evidence should be admitted whether it is both relevant and potentially helpful to the jury in explaining aspects of the testimony in eyewitness that are not easily understood with common sense alone.
On the other hand, in the case of Smith v. State (1981), courts have admitted testimony from an expert on the battered woman syndrome because it will help jurors understand and evaluate the evidence. The Supreme Court of Georgia reasoned that
The expert’s testimony explaining why a person suffering from battered woman’s syndrome would not leave her mate, would not inform police or friends, and would fear increased aggression against herself, would be such conclusions that jurors could not ordinarily draw for themselves.
If without providing expert testimony in the case of battered woman syndrome, the jurors and the prosecutor would use the ‘logical reaction’, which is the battered woman would be to either call the police or leave her batterer. If jurors had this misconception, they could perhaps be aided by the testimony of an expert indicating that for various psychological reasons or fear of reprisal, battered woman generally cannot leave such as the case of Ibn-Tamas v. United States (1979).
The third is the evidence from the expert testifies must be scientifically reliable and generally accepted in the scientific community. The concern of expert testimony is whether scientific reliable because it may not mislead or deceive juries and not merely reflect a personal opinion. In case of eyewitness testimony and the battered woman syndrome, there has been little consensus about the validity of the available research and about whether that research can form the basis for an expert’s opinion.
For example, in the battered woman syndrome, some psychologists will be allowed to testify (e.g. State v. Marks, 1982) because their opinions seemed based on generally accepted scientific consensus but others will be excluded (e.g. State v. Saldana, 1982) because that scientific acceptance seems lacking.
So, discussion of whether syndrome evidence is a sufficiently developed concept center on trying to decide at what point scientific principles become generally accepted as valid by other researchers in particular field.
Finally, in the criterion of the probative value (i.e. the importance of evidence to the decision of whether a defendant is guilty or innocent) on the evidence must outweigh its prejudicial effects (which is concerned with whether evidence may mislead the court). In the area of battered woman syndrome, possibly prejudice could arise from labeling the murder victim a batterer or from the overly sympathetic effect that the testimony could engender in the defendant’s favor. These possibilities must be weighed against the value of the expert’s testimony in helping jurors evaluate the defendant’s claim, of self-defense. It is because no one has studied the impact of the testimony on jurors; it is difficult to define a general balance between the two extremes.
There are a number of problems associated with psychologists acting as expert witnesses concerning both professionals and ethical issues. Firstly, the legal controversy revolves around the use of expert testimony. For example, Loftus (1984) suggested that psychological experts’ testimony would invade the province of the jury, have an undue influence on jurors, and provide information already familiar to jurors. Thus some courts are not open to expert testimony on human memory. Other courts, however, feel that psychologists can aid the determination of fact by educating the courts about the accuracies and inaccuracies of eyewitness reports. Aside from knowing the predisposition of the judge and the legal history of his or her jurisdiction, it is difficult to say in advance whether expert testimony by a psychologist will be admitted.
Secondly, the poor face validity in some psychometric tests that are the problems associated with psychologists acting as expert witnesses.
Blau (1998) and Rogers & Barrett (1996) said that the use of unreliable or invalid scientific methods appropriately threatens credibility, as does insufficient knowledge of the methods used as a framework for the testimony.
Moreover, Gudjonsson (1984) also suggested that some psychometric tests have poor face validity, despite undergoing vigorous standardization and validation procedures. This often leads to detailed questioning on the subject of the tests used. This problem is heightened by the fact that many psychological tests are not really suited to answering legal questions. Thus, the psychological interpretation of test results may be very different from a legal interpretation.
King (1986) also argued that the root of this problem could be traced back to the fact that while psychological phenomena tend to be relative, lawyers prefer absolute which true or false, yes or no. However, as Gudjonsson notes, this should encourage psychologists to improve current testing procedures, and come up with new assessment measures that are more suitable for answering the issues important to courts.
Another consideration is that the psychologists did not have enough knowledge in courtroom procedures. Saks (1992) observed that experts ‘control’ the knowledge of their fields; they determine how to conceptualize and organize the material and what to emphasize. However, the judges and lawyers control the case, including just what part of the expert’s store of information they consider to be relevant. Thus, “the paradigms of the legal process and virtually any field of knowledge are almost assured to be in conflict with each other”.
Furthermore, Blackburn (1993) suggested that not all psychologists are familiar with courtrooms and legal procedures, or have the skills required presenting evidence in the proper manner. However, Helibrun & Annis (1998) maintained that in US this problem was beginning to be addressed that with training being provided for psychologists who gave expert testimony.
The ‘battle of the experts’ which also a critical problem in approaching the psychologists as expert witness. Turnstall et al. (1982) said many fear that the “battle of the experts” can serve only to damage the reputation of psychology as a scientific discipline. It is certainly that one of the more important factors that psychologists will need to consider when deciding whether or not to appear as expert witnesses.
Another consideration is that, McCloskey and Egeth (1983) argued that having psychologists testify in court would inevitably produce nasty battles of the experts, with each side reducing the credibility of the other. This displayed conflict that could hurt the reputation of the psychological profession by creating the impression of psychology as a subjective, unscientific discipline.
Wells (1984) suggests that by refusing to give expert testimony, psychologists may actually reduce the public’s view of their profession by reinforcing the impression that psychologists are unable or unwilling to do research that has an applied value.
On the other hand, Wells et al. (1980) suggested that psychologists should develop a standard form of expert advice that could be routinely delivered to the juries. The advantage of this approach is that it would avoid both the conflict and cost associated with hiring expert psychologists. Nijboer (1995) has found that on some occasions when experts have been called by both counsels, in order to prevent possible the ‘battles of the experts’, they should prepare a joint statement for the court based on their joint conclusions.
The other factors that threaten the credibility of an expert witness is that the perception of the expert witness as “hired guns”. This perception arises from the fact that expert witnesses typically are paid for their testimony by one side of the adversarial system. Indeed, expert witnesses may destroy their own credibility by charging fees that are deemed outrageous by juries. Mossman (1999) said that the view of expert witnesses as “hired guns” is so pervasive that such reference even appeared in case law.
On the other hand, Wrightsman (1991) points out that psychologists will tend to sympathize with the side that employs them. This sympathy may not be conscious but may result in a selective filtering of information through a desire to be helpful to the client.
In order to improve the above problem in expert testimony, Davies (1995) suggests that the reputation of psychologists in Britain might best be served by the rigorous enforcement of codes of practice and the registration of qualified experts. Kapardis (1997) also notes that psychologists in the USA have recently been given formal guidelines in an attempt to ensure that they behave in appropriate ways.
The nature of adversarial legal proceedings means that psychologists giving expert testimony can end up becoming identified with representing either one side (i.e. prosecution or defence). This ethical consideration is very important because the research from Vidmar and Schullar (1989) showed that jurors often mistakenly believe that lawyers engaged those experts who would have a opinion favorable to their clients.
Sheldon and MacLeod (1991) suggested that in order to reduce these problems, there were three considerations. Firstly, the judge should use a psychologist’s report on a particular subject relevant to the trial as a basis on which to cross-examination. Another consideration is that, having independent psychologists who work as part of an independent forensic science service, or training some of the lawyers in the subject of psychology.
Finally, Azevedo (1996) also outlined some factors that would threaten the credibility of the expert witness. Firstly, the threat to credibility is inconsistency between experts’ testimonies and their actual professional practices, whereby they profess one practice and perform another. Secondly, some experts are tempted to exaggerate their credentials or testify on issues about which their knowledge is marginal. These professional “stretches” render experts vulnerable to rigorous cross-examination exposing the true limits of their training and knowledge. Another consideration is that the ignorance of the facts of specific case about which an expert is testifying. Finally, some psychologists exposed inconsistencies between current testimony and testimony in previous cases may be damaging. These are the problems and limitation that related to the psychologists acted as expert witness.
In conclusion, research on the psychological testimony began almost 100 years ago. In the accumulated research the eyewitness testimony can be far from perfect, and there are many factors that affect eyewitness reports. The use of expert psychological testimony has increased in recent years with a concomitant increase in the range of cases. The psychologists allowed to give expert testimony are a very complex question because the issues of admissibility of psychological evidence are still problematic in some cases. From the limitation as shown before, the main problems influenced the admissibility of expert witness in court are the legal controversy, “battle of the experts” and “hired guns”. In the future perspective, more realistic research is needed, and research should explore age differences in eyewitness testimony, the testimony of crime victims and techniques to improve the accuracy of testimony. Nevertheless, in some cases it can provide valuable information to the courts.