‘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

The question of how courts assess expert evidence—especially when mental disability is an issue—raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (‘cherry picking’ evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context—in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial decision making in both the common law and civil law. Finally, we speculate as to whether the new United Nations Convention on the Rights of Persons with Disabilities is likely to have any impact on practices in this area. Copyright © 2009 John Wiley & Sons, Ltd.     

Testimony and the Constitutive Norm of Assertion

Abstract

I can, given the right conditions, transmit my knowledge to you by telling you some information. If I know the time, and if all goes well, I can bring it about that you know it too. If conditions are right, all I have to do is assert to you what time it is. Paradigmatically, speakers use assertions to transmit what they know to their hearers. Clearly, assertion and testimony are tightly connected. The nature of this connection, however, is not so clear. According to many accounts, assertion has an epistemic constitutive norm. This norm appears to be able to account for some important features of testimony: first, testimonial knowledge transmission, second, the reliability of testimony, and third, the epistemic rights exchanged in cases of testimony. In this paper, however, I argue against this apparent ability. The constitutive norm of assertion, I argue, plays no role in accounts of testimonial knowledge transmission, or of the epistemic rights that testimony confers. This is especially clear when we consider the general norms to which we’re held. Epistemological accounts of testimony can and should, therefore, avoid the difficult debate over the constitutive norm of assertion.     

Can rapport building strategies,age, and question type influence preschoolers’ disclosures of adult wrongdoing?

In the present experiment, we examined preschoolers’ disclosures of a secret as a function of rapport building strategies used in Scandinavian field settings (verbal rapport building vs. prop rapport building), age in months (33–75 months) and question type (open-ended free recall invitation vs. suggestive questions). Fifty-three preschoolers (M = 60.5 months old, SD = 11.4) witnessed a researcher break a toy and were asked to keep the toy breakage a secret. The children were thereafter interviewed about the incident. Overall, 18.9% of the children disclosed the secret after an open-ended free recall invitation. The disclosure rate rose to 83% after the final phase of the interviews when questions containing suggestive details were asked of the children. Notably, we did not observe any significant effects as a function of manipulating rapport building strategy. A linear regression model showed that child age (in months) significantly predicted the amount of reported details, with younger preschoolers reporting fewer details compared to older preschoolers. Age also predicted the amount of correct details, but not the amount of incorrect details. No age differences were found with regard to children’s disclosure tendencies or proportion of central details about the secret. Methodological limitations and practical implications will be addressed.     

Memory for positive,negative and neutral events in younger and older adults: Does emotion influence binding in event memory?

When remembering an event, it is important to remember both the features of the event (e.g., a person and an action) and the connections among features (e.g., who performed which action). Emotion often enhances memory for stimulus features, but the relationship between emotion and the binding of features in memory is unclear. Younger and older adults attempted to remember events in which a person performed a negative, positive or neutral action. Memory for the action was enhanced by emotion, but emotion did not enhance the ability of participants to remember which person performed which action. Older adults were more likely than younger adults to make binding errors in which they incorrectly remembered a familiar actor performing a familiar action that had actually been performed by someone else, and this age-related associative deficit was found for both neutral and emotional actions. Emotion not only increased correct recognition of old events for older and younger adults but also increased false recognition of events in which a familiar actor performed a familiar action that had been performed by someone else. Thus, although emotion may enhance memory for the features of an event, it does not increase the accuracy of remembering who performed which action.     

Individual differences impact memory for a crime: A study on executive functions resources

Previous studies demonstrated that memory accuracy is affected by the availability of the individual’s cognitive resources. A predominant role in complex cognition has been postulated for executive functions (EF). The aim of the present study was to verify if there are differences in remembering a crime with respect to the individual’s EF availability (i.e., Shifting, Inhibition, and Updating). We showed participants a video of a violent crime. Next, they were requested to imagine to be an eyewitness of the crime and report a testimony as detailed as possible. A subsequent memory test was run after ten days. EF resources were assessed in a third session through three neuropsychological tasks. Findings showed that high EF individuals reported more correct details and fewer memory distortions (i.e., omissions and commissions) than low EF individuals. Our results underline that individual EF resources are implicated in the recalling of an event.     

Children's expectations and episodic reports over 12 weeks: Influences on memory for a specially designed pediatric examination

This investigation extended work on the linkage between knowledge and remembering by exploring the relation between generic and episodic memory representations. Thirty 6-year-old children experienced a mock physical examination with some expected components omitted and other unexpected actions included. Immediately and again after 12 weeks, the children reported the event, answered questions about what usually happens in an examination, and rated their confidence in aspects of their reports. They remembered more typical than atypical present components, that is, those included in the examination, and, over time, falsely reported more typical than atypical actions. The children produced intrusions of expected-but-omitted medical features at the delay but with lower confidence ratings than they provided for correctly recalled items. Performance on a source monitoring task was associated with aspects of the children's confidence ratings for intrusions. The findings provide evidence that the relation between episodic and generic representations is dynamic and suggest that the capacity to differentiate between them contributes to the development of accurate eyewitness memory.     

Eyewitness identification in simultaneous and sequential lineups: an investigation of position effects using receiver operating characteristics

For decades, sequential lineups have been considered superior to simultaneous lineups in the context of eyewitness identification. However, most of the research leading to this conclusion was based on the analysis of diagnosticity ratios that do not control for the respondent’s response criterion. Recent research based on the analysis of ROC curves has found either equal discriminability for sequential and simultaneous lineups, or higher discriminability for simultaneous lineups. Some evidence for potential position effects and for criterion shifts in sequential lineups has also been reported. Using ROC curve analysis, we investigated the effects of the suspect’s position on discriminability and response criteria in both simultaneous and sequential lineups. We found that sequential lineups suffered from an unwanted position effect. Respondents employed a strict criterion for the earliest lineup positions, and shifted to a more liberal criterion for later positions. No position effects and no criterion shifts were observed in simultaneous lineups. This result suggests that sequential lineups are not superior to simultaneous lineups, and may give rise to unwanted position effects that have to be considered when conducting police lineups.     

Food Fight! The Swedish Low-Carb/High Fat (LCHF) Movement and the Turning of Science Popularisation Against the Scientists

Science popularisation is widely recognised as having its ‘political uses’ and as serving as a conventional means for buttressing the epistemic authority of the institutions of science in society. By separating the work of producing new knowledge from its dissemination, popularisation promotes public understanding and appreciation of science placed beyond public reach and influence. However, simply by insisting upon such a separation, so popularisation remains vulnerable to ‘capture’ by skilled and resourceful communicators intent on turning it against the established authority of scientists. This is a phenomenon which can be analysed in relation to the communicative strategies pursued by a collection of general practitioners, diabetics and self-styled dietary experts in Sweden championing a low-carbohydrate/high fat (LCHF) dietetics akin to the Diet Revolution initiated by Robert Atkins in the early 1970s. By dedicating themselves to achieving an overwhelming public presence in the propagation of simplified accounts of dietary science, the LCHF movement has been able to fashion science popularisation into a weapon capable of being turned back upon established dietary expertise in Sweden. In this effort they have proceeded on two fronts; firstly by debunking established dietary advice for failing to live up to idealised standards of ‘sound science’, and secondly, by effectively mobilising the personal testimony and endorsements of dieters themselves in order to publicly confirm the authenticity and trustworthiness of the LCHF regimen.