Expert Evidence Research Articles

Corpse identification in mass disasters and other violence: the ethical challenges of a humanitarian approach.

In October 2022, the Centre for Ethics of Yenepoya University hosted a national workshop entitled: "Respect for human dignity of the unidentified dead from mass disasters and other violence: strategies for the ethical management of biological samples and personal data". The aim was to explore and share experience and ethical considerations regarding the management and identification of human remains in the event of disasters, with the purpose to arrive at a general consensus about what constitutes the ethical foundation of the management of unidentified human remains in forensic practice and, in particular, contextualizing this in India. The main ethical consideration that emerged was tracing the missing and identifying the dead are crucial to maintaining or restoring basic human rights and responsible relief activities. Identification is not only an organizational and scientific achievement but, regardless of circumstances, also necessarily and always an activity with significant political, epistemic, and philosophical relevance and consequence. In India, it could be important to consider new legal provisions for the management of human samples so that this would provide a starting point for the treatment of human remains managed for forensic purposes with uniformity in the country. Another important step in which governments should take part regards the involvement and education of the general public to develop their interest in this important goal. In the field of forensic anthropology, artificial intelligence can support, through the use of algorithms, the decision-making process that leads to the identification of the victim or its remains. Furthermore, they can be used to extract new knowledge from huge databases and shorten identification through computer automation of data binding activities. Applying artificial intelligence tools in forensic sciences to collect new information from massive datasets to enhance knowledge, and reduce human subjectivity and errors, provides a greater scientific basis that could improve the strength of the evidence and support the admissibility of expert evidence. In light of the general lack of national/international guidance about ethical oversight for identification and care of human remains, the fact that regulations are frequently not adequate to govern ethical aspects, we hope that an internationally recognized body should develop such guidance in collaboration with relevant organizations.

Context Matters

Abstract In seven trials to date, the International Criminal Court (ICC) has relied on the expertise of historians, anthropologists and political scientists to provide historical and political context. Overview expert witnesses help the judges appreciate the evidence of charged crimes in a wider context of conflict and violence. In this article, I consider the fundamental purpose and factors militating in favour of engaging an overview expert. In addition, I first review and then reflect on the current use of overview expert evidence — as a subset of expert evidence — in ICC trials, to better understand its legal and practical utility in international crimes cases. I focus on four aspects: relevance in criminal proceedings, timing of engaging an expert, selection of experts and impact on the fairness of proceedings.

Evidence from criminal law experts in Indonesian criminal trials: Usurping the judicial function?

This article seeks to account for the recent explosion in the use of expert legal evidence given by criminal law academics in criminal trials in Indonesia. This issue has received almost no scholarly attention, despite experts sometimes even opining on the guilt or innocence of defendants. Focusing on the evidence given for criminal trials by three preeminent Indonesian legal scholars, this article examines the form and content of the evidence, the justifications put forward in Indonesia for allowing it, and whether judges are receptive to it. Contrary to the assumptions of lawyers, we find that, overall, expert evidence appears to have very little discernible impact on judicial decision-making. It does, however, give the state an evidentiary advantage over defendants in some cases. We then consider what our findings say about the Indonesian judicial system—particularly the perceived competence of its judges—and the legal system more broadly.

Improving health equity through health care systems research.

To describe health equity research priorities for health care delivery systems and delineate a research and action agenda that generates evidence-based solutions to persistent racial and ethnic inequities in health outcomes. This project was conducted as a component of the Agency for Healthcare Research and Quality's (AHRQ) stakeholder engaged process to develop an Equity Agenda and Action Plan to guide priority setting to advance health equity. Recommendations were developed and refined based on expert input, evidence review, and stakeholder engagement. Participating stakeholders included experts from academia, health care organizations, industry, and government. Expert group consensus, informed by stakeholder engagement and targeted evidence review. Priority themes were derived iteratively through (1) brainstorming and idea reduction, (2) targeted evidence review of candidate themes, (3) determination of preliminary themes; (4) input on preliminary themes from stakeholders attending AHRQ's 2022 Health Equity Summit; and (5) and refinement of themes based on that input. The final set of research and action recommendations was determined by authors' consensus. Health care delivery systems have contributed to racial and ethnic disparities in health care. High quality research is needed to inform health care delivery systems approaches to undo systemic barriers and inequities. We identified six priority themes for research; (1) institutional leadership, culture, and workforce; (2) data-driven, culturally tailored care; (3) health equity targeted performance incentives; (4) health equity-informed approaches to health system consolidation and access; (5) whole person care; (6) and whole community investment. We also suggest cross-cutting themes regarding research workforce and research timelines. As the nation's primary health services research agency, AHRQ can advance equitable delivery of health care by funding research and disseminating evidence to help transform the organization and delivery of health care.

‘Out of the Penal System and into the Hospital Regime?’ Judicial Challenges in Sentencing Mentally Disordered Offenders and the Likely Impact of the 2020 Sentencing Council Guideline

Mentally disordered offenders may be vulnerable yet also pose particular risk to the public. Achieving appropriate sentencing poses complex challenges for judges in properly determining culpability and punishment, protecting the public, and meeting any identified treatment needs of the defendant. With respect to all three elements there is likely to be necessary reliance upon psychiatric expertise. Despite much previous statutory guidance, there has not – until very recently – been available specific sentencing guidelines from the Sentencing Council (SC) to assist the judiciary in what is a profoundly difficult exercise. This review describes and considers the guidance available to the judiciary in the Crown Courts of England and Wales regarding the various disposal options – including that which ‘hybridises’ penal and treatment disposal – in addition to facilitating and properly limiting the role of expert evidence. A specific focus is on contextualising, and commenting upon, the SC's recently published Guidance, Sentencing Offenders with Mental Disorders, Developmental Disorders or Neurological Impairments, which seeks to consolidate information, improve knowledge, reduce confusion, and assist the courts towards properly and consistently addressing the relevance of mental disorder to sentencing. In doing so, in the authors’ view, it privileges punishment over public safety, leaving judges to address public safety largely without the benefit of the explicit ‘routes to sentencing’ approach of the Guidance.

Development of a complex intervention to prevent delirium in older hospitalized patients by optimizing discharge and transfer processes and involving caregivers: A multi-method study

BackgroundDelirium is a common yet challenging condition in older hospitalized patients, associated with various adverse outcomes. Environmental factors, such as room changes, may contribute to the development or severity of delirium. Most previous research has focused on preventing and reducing this condition by addressing risk factors and facilitating reorientation during hospital stay. ObjectiveWe aimed to systematically develop a complex intervention to prevent delirium in older hospitalized patients by optimizing discharge and transfer processes and involving caregivers during and after these procedures. The intervention combines stakeholder and expert opinions, evidence, and theory. This article provides guidance and inspiration to research groups in developing complex interventions according to the recommendations in the Medical Research Council framework for complex interventions. Design and methodsA stepwise multi-method study was conducted. The preparation phase included analysis of the context and current practice via focus groups. Based on these results, an expert workshop was organized, followed by a Delphi survey. Finally, the intervention was modeled and a program theory was developed, including a logic model. ResultsA complex intervention was developed in an iterative process, involving healthcare professionals, delirium experts, researchers, as well as caregiver and patient representatives. The key intervention component is an 8-point-program, which provides caregivers with recommendations for preventing delirium during the transition phase and in the post-discharge period. Information materials (flyers, handbook, videos, posters, defined “Dos and Don'ts”, discharge checklist), training for healthcare professionals, and status analyses are used as implementation strategies. In addition, roles were established for gatekeepers to act as leaders, and champions to serve as knowledge multipliers and trainers for the multi-professional team in the hospitals. ConclusionsThis study serves as an example of how to develop a complex intervention. In an additional step, the intervention and implementation strategies will be investigated for feasibility and acceptability in a pilot study with an accompanying process evaluation. Tweetable abstractDelirium prevention can benefit from optimizing discharge and transfer processes and involving caregivers of older patients in these procedures. Study registrationDRKS00017828, German Register of Clinical Studies, date of registration 17.09.2019.

Warnings From the West: Identification and Expert Evidence as Causes of Wrongful Convictions and the Implications for South Africa (Part 1)

Being wrongfully convicted of a crime is arguably one of the most dreadful examples of injustice in any criminal justice system. This phenomenon has been recorded and studied in Western, predominantly adversarial, jurisdictions such as the United States of America, England-Wales, Canada, and Australia since the late twentieth century. Factors that have been found to contribute to wrongful convictions include eyewitness misidentification, faulty forensic evidence, prosecutorial misconduct, inadequate defence, and many more. While adversarial safeguards such as cross-examination and acquired expertise are thought to diminish the chances of wrongful convictions by revealing unreliable evidence, an increasing number of researchers are concerned that these safeguards have little effect on accurate fact-finding in criminal trials. In South Africa, where individual reports of wrongful convictions in the predominantly adversarial criminal justice system have been recorded in the media, no systems exist to track or investigate the injustice of false convictions. The objective of Part 1 of this article is to review the existing literature on eyewitness misidentification evidence as cause of wrongful convictions as well as those adversarial safeguards upon which criminal justice systems rely to identify errors in fact-finding. Parallels are drawn to the adversarial system as it functions in South Africa, and the possibility of misidentification as root and legal cause of wrongful convictions locally is considered.

Gender and Forced Displacement at the International Criminal Court

Abstract International criminal courts and tribunals have missed opportunities to recognize gendered experiences, including when addressing crimes without a clearly sexual component. The International Criminal Court (ICC) has an opportunity to take a different approach when considering the crime against humanity of deportation in its Bangladesh/Myanmar proceedings. While the prevalence of sexual and other gendered violence, including rape and killings, in Myanmar and perpetrated against the Rohingya is well-documented, and will likely form an important aspect of investigations, there is also scope to explore the gendered nature of displacement. This article reviews the intersection of international criminal law with broader critiques of international law concerned with displacement. It then investigates how ICC Chambers could take a gender-competent approach towards the elements of the crime against humanity of deportation and forcible transfer of population in the Bangladesh/Myanmar proceedings, including when examining the concepts of expulsion and coercion, lawful presence and the purpose of the forcible displacement. It proposes a contextual approach to that analysis, informed by gender-inclusive expert evidence, gender-competent investigation practices and thoughtful integration of victims’ representations

Reading the Signs: From Dyadic to Triadic Views for Identifying Experts

ABSTRACT A naturalistic approach to expert-identification begins by asking, ‘how do novices pick out putative experts?’ Alvin Goldman and Elizabeth Anderson, representing a fairly common approach, consider agents’ psychological biases as well as social situatedness. As good as this is, culture’s role in shaping cognitive mechanisms is neglected. An explanatory framework that works well to accommodate culturally-sensitive mechanisms is Peircean semiotics. His triadic approach holds that signs signify objects to interpreters. Applying the triadic model to expert-identification: novices interpret signs of expertise as pointing to particular experts. The main advantage of the framework is that it is significantly more nuanced than the Goldman-Anderson model in describing how agents identify experts. It explicitly accommodates cultural and agential differences in expert-identification. It also explicitly admits the possibility of rational disagreement in assessment of evidence for expertise. But these advantages come at a cost. Namely, it’s difficult in theory – as well as practice – to make one’s way into the semiotic system of someone from another culture to help guide them away from fraudulent experts. Even so, it’s a trade-off worth making since it organizes relevant details for expert-identification, which is a first step in sketching a better normative theory.

Fall risk stratification of community-living older people. Commentary on the world guidelines for fall prevention and management.

The Task Force on Global Guidelines for Falls in Older Adults has put forward a fall risk stratification tool for community-dwelling older adults. This tool takes the form of a flowchart and is based on expert opinion and evidence. It divides the population into three risk categories and recommends specific preventive interventions or treatments for each category. In this commentary, we share our insights on the design, validation, usability and potential impact of this fall risk stratification tool with the aim of guiding future research.

A New Self‐Defence Framework for Domestic Abuse Survivors Who Use Violent Resistance in Response

This article criticises the government's rejection of proposals by the Prison Reform Trust that would have extended self‐defence in householder cases to victims/survivors of domestic abuse. The authors argue that the Prison Reform Trust proposals should be enacted, and further supported by novel complementary reform of the option to retreat, and the exclusion of intoxicated mistaken belief in self‐defence claims. Specifically, the authors advance a statutory rebuttable presumption regarding the option to retreat in cases involving domestic abuse, namely, an assumption that the victim/survivor was not realistically able to retreat safely, unless it is proven otherwise. The authors also examine the appropriateness of the policy decision to exclude intoxicated mistaken belief in all self‐defence cases and advocate for its removal. It should be replaced with a requirement that all mistaken beliefs must be reasonable regardless of the presence of intoxication. Procedural recommendations are also advanced, including amendment of the Crown Court Compendium to include judicial directions on self‐defence which adopt a social entrapment approach in domestic abuse cases, and supported by the admissibility of non‐medical expert evidence on the nature and impact of coercive control.

Expert Consensus on Best Practices for Optimal Wound Closure in Total Knee Arthroplasty: A STRIDE Initiative for Orthopedic Surgeons of India.

Wound closure in joint replacement surgeries is crucial for postoperative rehabilitation. Despite substantial advances in total knee arthroplasty (TKA), no guidelines/recommendation or consensus practice statement available internationally or nationally around the optimal method of wound closure. The study aimed to develop evidence-based consensus on current practices, and proposed adoption of advanced wound closure initiatives. From Nov 2020 to Jan 2021, a group of 12 leading orthopedic surgeons from India met virtually under the Success in Total joint replacement through Recommendation In wounD closure (STRIDE) initiative. Expert committee used Delphi method to evaluate definitional statements that were identified through a comprehensive review of the published literature. Over three rounds of iterative voting, revision, and exclusion, the expert panel provided recommendations based on their clinical expertise and scientific evidence. Statements that reached ≥ 80% agreement was considered as "consensus". A survey poll was conducted following each round to add or suggest changes to the statements. General recommendations include marking the arthrotomy before incision, placing the knee in flexion (less than 90°) for re-approximation during arthrotomy closure. The barbed suture can be a good alternative to traditional sutures for providing water-tight capsule closure and topical skin adhesives (TSAs) to staples for minimizing hospital visits and improving patient satisfaction. This consensus provides interim guidance and practical references to orthopedic surgeons of India enabling easy access to evidence-based healthcare solutions for TKA wound closure. These recommendations need to be periodically reviewed in light of emerging evidence.

Independent Review, Miscarriages of Justice, and Computer Evidence

Brian Altman KC reviewed unreliable expert evidence on the Horizon software system. The Post Office denied, including to Parliament, that there was any evidence of miscarriages of justice revealed before the Court of Appeal in 2021. In his review, Brian Altman KC indicated the prosecutions was fundamentally sound; this paper looks at the quality of the judgments arrived at to come to that conclusion. 
 Index words: Altman General review; Post Office Limited; Horizon IT system; unreliable evidence; Clarke Advice; Swift Review; Bates litigation; Hamilton appeals

Explanation of context, mechanisms and outcomes in adult community mental health crisis care: the MH-CREST realist evidence synthesis.

Mental health crises cause significant disruption to individuals and families and can be life-threatening. The large number of community crisis services operating in an inter-agency landscape complicates access to help. It is unclear which underpinning mechanisms of crisis care work, for whom and in which circumstances. The aim was to identify mechanisms to explain how, for whom and in what circumstances adult community crisis services work. The objectives were to develop, test and synthesise programme theories via (1) stakeholder expertise and current evidence; (2) a context, intervention, mechanism and outcome framework; (3) consultation with experts; (4) development of pen portraits; (5) synthesis and refinement of programme theories, including mid-range theory; and (6) identification and dissemination of mechanisms needed to trigger desired context-specific crisis outcomes. This study is a realist evidence synthesis, comprising (1) identification of initial programme theories; (2) prioritisation, testing and refinement of programme theories; (3) focused realist reviews of prioritised initial programme theories; and (4) synthesis to mid-range theory. The main outcome was to explain context, mechanisms and outcomes in adult community mental health crisis care. Data were sourced via academic and grey literature searches, expert stakeholder group consultations and 20 individual realist interviews with experts. A realist evidence synthesis with primary data was conducted to test and refine three initial programme theories: (1) urgent and accessible crisis care, (2) compassionate and therapeutic crisis care and (3) inter-agency working. Community crisis services operate best within an inter-agency system. This requires compassionate leadership and shared values that enable staff to be supported; retain their compassion; and, in turn, facilitate compassionate interventions for people in crisis. The complex interface between agencies is best managed through greater clarity at the boundaries of services, making referral and transition seamless and timely. This would facilitate ease of access and guaranteed responses that are trusted by the communities they serve. Strengths include the identification of mechanisms for effective inter-agency community crisis care and meaningful stakeholder consultation that grounded the theories in real-life experience. Limitations include the evidence being heavily weighted towards England and the review scope excluding full analysis of ethnic and cultural diversity. Multiple interpretations of crises and diverse population needs present challenges for improving the complex pathways to help in a crisis. Inter-agency working requires clear policy guidance with local commissioning. Seamless transitions between services generate trust through guaranteed responses and ease of navigation. This is best achieved where there is inter-agency affiliation that supports co-production. Compassionate leaders engender staff trust, and outcomes for people in crisis improve when staff are supported to retain their compassion. Further work might explore inter-agency models of crisis delivery, particularly in rural communities. Future work could focus on evaluating outcomes across crisis care provider agencies and include evaluation of individual, as well as service-level, outcomes. The implementation and effect of mental health triage could be explored further, including via telehealth. Barriers to access for marginalised populations warrant a specific focus in future research. The study is registered as PROSPERO CRD42019141680. This project was funded by the National Institute for Health and Care Research (NIHR) Health and Social Care Delivery Research programme and will be published in full in Health and Social Care Delivery Research; Vol. 11, No. 15. See the NIHR Journals Library website for further project information.

The admissibility and persuasiveness of expert evidence

AbstractParenting plan evaluators are expert witnesses who offer their opinion. Courts in common law jurisdictions generally do not accept evidence of an opinion as it is not considered to be reliable evidence from which to establish a fact. An exception to that general principle is expert opinion evidence. In short, an opinion from a person with specialized knowledge or expertise about the area in which they are an expert may be sufficiently reliable to form an evidentiary basis from which to make a finding of fact, provided the opinion meets certain criteria. These criteria will be discussed in this article, as well as what is relevant, reliable and persuasive evidence. The relevant legal principles will be examined in an historical and contemporary, theoretical and practical context. The authors reflect on their considerable experience as consumers of expert evidence and apply this to parenting plan evaluations, as well as considering future challenges in the field.

"It is the Poor Who Will Suffer the Most": The Discriminatory Impact of Covid-19 Lockdown Restrictions on the Poor in South Africa

In 2020 the Coronavirus disease 2019 (COVID-19) spread across the globe at a seemingly unstoppable rate. Countries implemented various lockdown regulations to curb the spread of the virus. South Africa was no different and went into lockdown on 26 March 2020 under a five-tier risk-adjusted strategy. Under the regulations, all non-essential economic activity was immediately suspended. This had dire financial consequences for all in the country. However, statistics show that the poorest and most vulnerable in society have borne a disproportionate brunt of the impact of the economic restrictions. In this context this article asks whether the economic restrictions implemented under the lockdown regulations (as promulgated in terms of the Disaster Management Act 57 of 2002) discriminated unfairly on the grounds of poverty. This is in line with a 2018 decision by the Equality Court of South Africa that poverty constitutes unlisted grounds for discrimination as envisioned under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Social Justice Coalition v Minister of Police 2019 42 SA 82 (WCC)). In this article, the test for unfair discrimination laid down in Harksen v Lane 1998 1 SA 300 (CC) is applied to the economic restrictions implemented under the lockdown regulations to determine whether they constitute unfair discrimination. It is argued that a case of indirect discrimination on the grounds of poverty could be made. However, determining the justifiability (in terms of section 36 of the Constitution of the Republic of South Africa, 1996) of the regulations would require a thorough analysis based on expert evidence. Nevertheless this article lays the foundation for an actionable case that could be brought before a court against the government of South Africa on behalf of a specific community to determine whether the economic restrictions were unfairly discriminatory on the grounds of poverty. This would allow for the consideration of a suitable remedy. This could include the formulation and implementation of development programmes to rectify the harm caused.

Cross-Cultural Adaptation, Reliability, and Convergent Validity of Occupational Self-Assessment for Brazilian Portuguese.

The Occupational Self-Assessment version 2.2 (OSA) is a self-assessment of the client's occupational competence and values. To describe the process of cross-cultural adaptation of OSA into Brazilian Portuguese (OSA-Brazil) and examine its reliability and validity for use with the Brazilian population. Assessment translation was guided by two international guidelines for cross-cultural adaptation of standardized instruments. Face validity was tested with 24 participants. Internal consistency, test-retest reliability, and convergent validity were tested with a convenience sample of 40 participants. The cross-cultural adaptation process concluded with a consensus among the expert panel review (r > 80%) and evidence of strong face validity. The OSA-Brazil demonstrated appropriate test-retest reliability (r > 0.70) and convergent validity with the 36-Item Short-Form Health Survey (SF-36) (p < .05). The OSA-Brazil has good face validity, test-retest reliability, and convergent validity. The assessment can be used by the Brazilian occupational therapists to assess client's occupational competence.

Explainability and the Epistemic Division of Labour in Adjudication

The ‘black box’ quality of contemporary algorithmic tools raises concerns related to their use in court because of the law’s emphasis on explanations, transparency, and public reasons. We argue that the problems of explainability associated with contemporary algorithmic tools are, from a legal perspective, neither sui generis nor irreconcilable with existing norms. We distinguish between the types of explanations required by fact-finders and those required from judges. We conclude that apparent tensions can be reconciled by attending to the epistemic division of labour between the legal and scientific communities, contextualizing expert evidence appropriately, and distinguishing between explanation as reconstruction and as justification.

Vonnisbespreking: Mediese nalatigheid – vertraging in oorplasing van pasiënt na geskikte sorg; en of nalatigheid oorsaaklik verband hou met amputasie van pasiënt se been

Medical negligence – delay in transfer of patient to definitive care; and whether negligence was causally linked to amputation of patient’s leg The majority decision in the present case concerns a medical negligence matter involving the negligence of a general practitioner regarding his treatment of another medical practitioner who had sustained an injury during a robbery. The case merits closer inspection for a few reasons. The majority decision did not consider all the elements of a delict as one would expect, whilst the finding was based mainly on a hypothetical construction of the medical negligence test. The majority’s handling of expert medical evidence is also peculiar for preferring a theoretically based expert opinion to the opinion of an expert who personally examined the injured patient. In the discussion the facts are briefly traced, emphasising the chronological order of events for the specific reason of the significance of the time factor in the judgment. Next the majority and minority judgments are discussed, followed by a consideration of the test for medical negligence in the case, the role of causation and the contrasting expert evidence that was presented. The discussion is concluded with the argument that had the locality rule (the role of locality when ascertaining medical negligence) been applied in this case, the outcome would have been completely different.

Psychological Research Evidence in Refugee Status Determination

Abstract This paper presents evidence that refugee status decision makers make assumptions about how humans think and act that are contrary to decades of scientific evidence about human behaviour and cognition (e.g. memory, risk assessment) – including studies and reviews of studies specifically focused on the RSD context. This evidence is not made available to decision makers. In contrast, decision makers regularly benefit from systems and procedures providing relevant, up to date, methodologically sound, impartial, independent, balanced expert evidence pertaining to country of origin information (COI). This paper proposes similar processes for the collation, assessment, and presentation of psychological evidence in order to ensure fairer, more sustainable refugee status decisions.