Role Of Expert Witness Research Articles

Comparative Analysis of Expert Testimony in Cases Involving Mental Health as Mitigating Factor

In the 20th century, the reliance on expert witnesses grew due to technological advancements and complex legal cases. Notably, the scientific foundation of psychology gained widespread acknowledgment, bestowing a pivotal role upon psychologists, particularly those specializing in forensic psychology, within the courtroom. In the United States, experts assist impartial judgments in the adversarial litigation model. This article conducts a comparative analysis of two casesone in South Korea and one in the United Stateswhere forensic psychologists played a central role in providing crucial assistance to defendants grappling with mental health issues. These cases shed light on the discernible distinctions within the expert witness systems between the two countries, emphasizing the profound impact of legal traditions on the significance attributed to expert opinions and the dynamics of equitable legal decision-making. This exploration underscores the evolving role of expert witnesses in an ever-advancing legal landscape, where their expertise continues to be a lodestar guiding the pursuit of justice.

Setting the Agenda: Family Communication Scholars as Expert Witnesses

ABSTRACT The legal community has long used family experts in preparation for court proceedings. Family law experts typically relied upon include psychologists, psychiatrists, social workers, and various family asset experts. However, the legal community is often unaware of family communication as a field and what we can add to the legal landscape to help families and resolve disputes. This article aims to (a) explain the role of expert witnesses in family law; (b) provide ideas for family law areas where communication scholars can be valuable; (c) provide an example illustrating how a family communication expert can help with pre-trial, trial, and post-decree procedures; (d) create a scaffolding for expert witness status; and (e) discuss limitations and constraints of the expert witness system, and suggest additional family law areas to be considered in the future.

The Role of Expert Witness in Obtaining Information on the Content of Foreign Law in Private International Law Cases

Türk mahkemelerine 5718 sayılı Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanunda (MÖHUK) yer alan kanunlar ihtilafı kurallarını ve bu kurallar uyarınca yetkili kılınan yabancı hukuku uygulama yükümlülüğü getirilmiştir (MÖHUK m.2(1)). Türk mahkemeleri, yabancı hukukun içeriğini tespit ve temin etmek amacıyla başta tarafların yardımı olmak üzere, çeşitli vasıtalara başvurabilmektedir. Türk hukukunda 6100 sayılı Hukuk Muhakemeleri Kanunu m.266 ve 6754 sayılı Bilirkişilik Kanunu m.3 uyarınca hukuki konularda bilirkişiye başvurmak açıkça yasaklanmıştır. Türk milletlerarası özel hukuk sisteminde yabancı hukukun bir “hukuk” olarak kabul edilmesi karşısında, Türk mahkemelerinin yabancı hukukun içeriğini temini konusunda sıklıkla başvurduğu vasıtalardan bir olan bilirkişiye başvurulmasının mümkün olup olmadığı sorunu ortaya çıkmıştır. Bu çalışmada ilk olarak, Türk doktrininin ve mahkeme tatbikatının incelenmesi sonucunda hukuki konularda bilirkişiye başvurma yasağının kapsamına yabancı hukukun içeriği hakkında bilgi edinilmesinin girmediği sonucuna ulaşılmıştır. Ardından, Yargıtay kararları ışığında yabancı hukuk hakkında bilgi edinilmek üzere kendisine başvurulan hukukçu bilirkişinin, Kanunlarda aranan niteliklere ilaveten sahip olması gereken vasıfları incelenmiştir. Son olarak, yabancı hukukun içeriğinin teminine ilişkin bilirkişi incelemesinin sınırları ve kapsamı ele alınmıştır. Bu kapsamda Yargıtay’ın öngördüğü bilirkişi raporunun Türk mevzuatına ilişkin olmaması, MÖHUK m.2(1)’e aykırı olmaması ve hukuki değerlendirme içermemesi şartları ayrıntılı olarak incelenmiştir.

Challenges in Prosecuting Human Trafficking Cases: The Role of Expert Witness

To be ranked at Tier 1 in the Trafficking in Persons (TIP) report, Section 108 of the Trafficking Victims Protection Reauthorization Act requires the state parties to comply with its minimum standards in combating human trafficking. Unfortunately, some states parties, including Malaysia failed to meet the minimum standards in curbing the monstrous crime fully. Their failure to be in Tier 1 is contributed by a few reasons, including the lack of success in prosecution. According to the United Nations Office on Drugs and Crime, the low number of convictions of traffickers is due to the absence of anti-legislation, lack of trained law enforcers and prosecutors and corruption among the stakeholders. In 2021, the U.S State Department has downgraded Malaysia's ranking in TIP report from Tier 2 to Tier 3. The main reason for the decline was that the government did not adequately address credible allegations from multiple sources alleging labour trafficking involving refugees, migrants, and domestic workers. To be in Tier 1, Malaysia should consider having expert testimony to secure convictions. Using qualitative research method, this paper examines the relevance of expert witness in human trafficking cases from Islamic, Malaysia and international perspectives. This paper further recommends its use in court to secure conviction against traffickers and protect the victims.

Expert Witnesses’ and Lawyers’ Perspectives on the Use of Archaeological Data as Evidence in Aboriginal Rights and Title Litigation

Expert witnesses provide opinions to courts to help the judge or jury understand complex, technical, or controversial facts presented in trial evidence. In Aboriginal rights and title litigation in Canada expert witnesses are often essential sources of primary facts, of opinion used by courts in weighing evidence, and of testimony regarding agreement and non-agreement of different types of evidence, including archaeological, oral historical, documentary, and ecological. This article examines results from interviews with archaeologists and lawyers, all currently or previously working in British Columbia, to assess the role of expert witnesses in relation to archaeological data presented as evidence in Aboriginal rights and title litigation. We interviewed twenty-one archaeologists who have acted as expert witnesses and nine lawyers with whom they have worked. All interview participants emphasized both that archaeology’s ability to show the extent of pre-contact land use made it an essential source of evidence and that limitations inherent in the archaeological record and prevailing methods, including the inability to discriminate reliably among ethnic groups, constrained its utility as the primary basis for establishing Aboriginal rights and title.

Using a Mock Trial to Teach Science and the Law

Over the course of 3 years, the Political Science and Biology Programs at a regional HBCU have built a curricular learning community centered on a mock trial competition, where a microbiology course was paired with an introductory legal studies course. Over the course of a semester, students enrolled in both courses studied a real appellate case that dealt with some aspect of forensic science (DNA evidence for example). The legal studies students were to act as prosecution and defense and the microbiology students played the role of expert witnesses and consultants. To be successful, students had to build an interdisciplinary team, outline their side’s case, and learn scientific and legal principles. This paper evaluates the impact of this experience on student learning using a mixed-methods approach. Students completed a self-reported knowledge survey and participated in a focus group debriefing session. Students report important gains in understanding the legal system and aspects of forensic science.

The Keenest Condiments: the Spectrum of Experts Across Traditions in Construction Arbitration

This paper will explore the role of expert witnesses in international construction arbitration across legal traditions. The focus will be to highlight the differences between the two types of experts. For the purposes of this paper, we will draw a spectrum with two extreme examples of expert witnesses. On one extreme of the spectrum, there is the expert who makes a living out of expert work and thus is seen to be closer to the client. On the other extreme of the spectrum, there is the expert who is providing an opinion on something that is his or her life’s work, this expert might never have given an expert report before. Both ends of the spectrum are heavily criticized. The goal is to distinguish both sides of the spectrum, considering the aspects of Civil Law and Common Law traditions.

The Role of Expert Witnesses in the Adjudication of Religious and Culture-based Asylum Claims in the United Kingdom: the Case Study of ‘Witchcraft’ Persecution

Abstract This article examines the role of cultural expertise in asylum judicial decisions in the UK by focusing on witchcraft-based persecution. The case study highlights multiple challenges to decision-making created by religious and cultural diversity, and the ensuing problems of assessing unfamiliar facts and beliefs against the often lack of corroborating evidence. Drawing on legal sources and a small number of anthropological studies, as well as analyses of judicial decisions, the article discusses how the unique characteristics of witchcraft cases, with their unfamiliar paradigms, are illustrative of the need to analyse and understand asylum claims within their broad cultural, historical, economic, and political contexts. The article exposes how cultural expertise assists judges in appreciating specific contexts and curbing their Eurocentric understanding of culture and religion, and shapes the final outcome of cases.

Recent Developments in Delaware Valuation Cases

This article discusses current developments in Delaware case law as they relate to valuation. It reviews all relevant Delaware Supreme Court decisions since 2017 and all relevant Court of Chancery decisions since 2019. We discuss the emphasis being placed by the Delaware courts on using discounted cash flow for valuations in related party transactions, as well as the substantial reliance on transaction price as the valuation measure in arm's-length transactions that have a satisfactory negotiation process. We conclude with a discussion of the impact of these and prior Delaware decisions on the valuation community and comments on the role of expert witnesses.

Strengthening the Position of Expert Witness in Judicial Process

An expert witness is a person requested to give testimony based on his/her specific expertise in a court trial. Expert testimony is needed to help the judges discovering the truth. A problem emerges when the expert witness is sued for his/her testimony by the losing party. The purpose of this research is to elaborate the role of expert witness and the need to strengthen its position in judicial process. This doctrinal research relies on the secondary data and employs a qualitative juridical analysis. The result of the research shows that the expert testimony is needed to clarify particular issue that cannot be addressed by the judges themselves. Considering its importance, the expert witnesses should be able to give their testimonies freely and protected from any legal action due to their testimonies.

Current Legal Situation for Patients with Paraphilic disorders and Implications of the ICD-11 for Paraphilic Disorders for Germany

IntroductionRecently the guidelines for the diagnosis of paraphilic disorders in the International Classification of Diseases and Related Health Problems, Eleventh Revision (ICD-11), have been published. AimThis article analyzes legal, regulatory, and policy issues relevant to the potential effects of the changes for the classification of paraphilic disorders in the ICD-11 in Germany. MethodsA forensic and a legal expert in Germany worked with other international experts to conduct this evaluation using an assessment guide provided by the World Health Organization. Main Outcome MeasuresPossible effects of the changes for the classification of paraphilic disorders in the ICD-11 on forensic practice, health systems, adjudication of individuals who have committed a sexual offense, and the provision of treatment in Germany. ResultsResults highlight the special situation of medical confidentiality in the German health system that facilitates the establishment of preventive networks for the treatment of pedophilic patients. The ICD-11 guidelines will help to clarify the boundary between pedophilic disorder and crimes of child sexual abuse. These will also establish a boundary with other paraphilic diagnostic concepts. We describe the central construct of criminal responsibility in the German legal system in relation to paraphilic disorders, the prominent role of expert witnesses, and the differences in the conceptualization of medical confidentiality within the health care system and within the legal system. Clinical ImplicationsThe ICD-11 proposals for paraphilic disorders provide a clearer differentiation, as compared with ICD-10, between variants of normal sexual behavior and sexual behavior that involves a non-consenting person or entity. Particular patterns of sexual preference that are not of relevance to public health, the health care system, or the legal system, such as masochism and fetishism, will no longer be named psychiatric entities and will, therefore, be regarded as private behaviors and destigmatized. Strengths & LimitationsThe assessment shows the specific legal situation in Germany for the treatment of paraphilic patients in a sexual medicine, psychiatric, and legal discourse. However, it was done only by a small number of experts. ConclusionA conclusion of the analysis was that the more specific and narrower definitions in the ICD-11 diagnostic guidelines, compared with those in ICD-10, particularly for pedophilic disorder and coercive sexual sadism disorder, will result in a reduction in false-positive diagnoses. It is unlikely that significant unintended and negative consequences will occur as a result of implementing the ICD-11 guidelines for paraphilic disorders.Briken P, Boetticher A, Krueger RB, et al. Current Legal Situation for Patients with Paraphilic disorders and Implications of the ICD-11 for Paraphilic Disorders for Germany. J Sex Med 2019;16:1615–1622.

Evolving Medical-Legal Issues in Breast Imaging

Because breast imaging practice is associated with a high number of medical malpractice lawsuits, understanding basic medical-legal parameters becomes even more important as new technology and conditions of practice evolve. Incorporating new supplementary breast screening in strategizing a response to the importance of breast density, recognizing the purpose and ramifications of issuing diagnostic imaging reports, understanding the role of expert witnesses in assisting standard of care determinations and employing reasonable applications for off-label use of medical devices exemplify the relevance of integrating defensible practice patterns in a changing medical environment. This article addresses these issues and provides a contextual discussion so that physicians and facilities are educated in their selection of a wide variety of approaches that can be applied to clinical use.

Designing a Multilateral Investment Court: Issues and Options

Led by the European Union and Canada. a coalition of states is contemplating negotiations that would lead to the establishment of a multilateral investment court as an alternative to investor–state arbitration for the settlement of investment disputes. Discussions of the design of such an institution are at an early stage, and this essay is intended to aid the discussions by outlining many of the issues that would need to be covered in the drafting of a treaty instrument to establish such a court, and suggesting possible solutions.1 The value of the proposed solutions is not that they are fully argued as the best way to design the court, but that they might trigger concrete thinking about the options available to the drafters. Also, I have emphasized issues that relate closely to the overall legitimacy of the court and its potential to transform investment dispute settlement: some design issues of considerable importance are not addressed, such as, for example, rules on document discovery, the role of expert witnesses, the structure of oral hearings and the sequencing of written pleadings, and so on. Some of these matters might be dealt with best in the treaty instrument and others through detailed rules of court or a code of procedure. I have tried to preserve the character of this essay as a broad-ranging ‘think piece’ rather than a blueprint for the court that purports to be exhaustive, or reads like a laundry-list.

Sleep in a legal context: The role of the expert witness.

Sleep experts are called to assist the jury in deciding the mental state of the accused at the time of their alleged criminal behaviour. This task is difficult as the literature on many sleep disorders, particularly sleepwalking and other parasomnias, is still largely a matter of case reports and case series. The probative value of much of the evidence given is not known. Sleep behaviour in the courts present a number of difficulties which illustrate the dilemmas that face an expert witness faced with ambiguous data and uncertain principles with which to interpret them. Additionally there are substantial policy issues involved which are not always adequately addressed in expert evidence. We outline the role of expert witnesses in such cases.

Bokolo v S 2014 (1)sacr 66 (sca): The practicality of challenging dna evidence in court

The techniques used in DNA profiling are well established and scientifically validated. The scientific validity of DNA evidence can, however, be so persuasive that such evidence risks being reduced to proof of guilt or innocence. Thus, the incorrect use of DNA evidence could lead to a miscarriage of justice where the innocent are convicted and the guilty are acquitted. Drawing from the Supreme Court of Appeal decision in Bokolo v S (Bokolo case), this case note discusses how DNA evidence can be placed in its proper forensic context. The article sets out the ideal role of expert witnesses, the role of opposing or neutral experts, and the active role of judicial officers in evaluating DNA evidence.

Bokolo v S 2014 (1)sacr 66 (sca): The practicality of challenging dna evidence in court

The techniques used in DNA profiling are well established and scientifically validated. The scientific validity of DNA evidence can, however, be so persuasive that such evidence risks being reduced to proof of guilt or innocence. Thus, the incorrect use of DNA evidence could lead to a miscarriage of justice where the innocent are convicted and the guilty are acquitted. Drawing from the Supreme Court of Appeal decision in Bokolo v S (Bokolo case), this case note discusses how DNA evidence can be placed in its proper forensic context. The article sets out the ideal role of expert witnesses, the role of opposing or neutral experts, and the active role of judicial officers in evaluating DNA evidence.

A Deception on the Public: The Real Scandal of Boulton and Park

The Boulton and Park case has become one of the cause celebre regularly cited by historians and lawyers studying the regulation of sexuality. The trial, and the role of expert witnesses in the ultimate decision to acquit, has been meticulously picked over. Rather less attention has been paid to the inception of the prosecution and the way in which that frames the subsequent trial in May 1871. Placing that trial in a wider socio-legal perspective reveals how masquerading as females regarded by the Victorian court process and the media in the light of deception, and contemporary fears about the nature of that deception which went beyond the ‘wickedness’ of sexual deviance into other areas of criminality. It also leads to a suggestion that one of the most significant thing, for contemporaries, about the episode was the delaying of the Prosecution of Offences Act 1879, setting up the office of the Public Prosecutor, given the perceived failure of the Treasury Solicitor’s Department in this case.

ACCOUNTING AS AN INFORMATION SOURCE FOR DETERMINATION OF GENERAL ASSET VALUE IN CONDITIONS OF THE SLOVAK REPUBLIC

Currently, expert witness's activities became an essential part of the development of business activities. Expert witness's activities deals with the process of determining the value based on the use of appropriate valuation methods. The basic role of expert witness's activities is valuation of the assets. In practice, expert witness' opinions are increasingly required not only by the courts and other public authorities, but also by the banking institutions, natural and legal persons. This demand stems primarily from the difference between the perception of price and the actual value of assets. The essential prerequisite for the success of a forensic expert witness's work is the access to quality information. The article's aim is to identify the information sources from which an expert witness is based on the preparation of expert witness's opinion. The theoretical and empirical research was applied in order to achieve the article's aim. The collection of empirical data was carried out using the technique of standardized interview with respondents. Based on the conducted research it can be concluded that the accounting is the principal point and the information source underlying the activity of a forensic expert witness in the determination of general asset value respectively the parts or individual assets items. Accounting presents the information source for various internal and external users. Forensic expert witnesses shall be even included to the users of accounting as regards the establishment of expertizing as a new scientific discipline.

Has the Landmark Supreme Court Decision in Jones v. Kaney Changed the Role of Expert Witnesses for the Better, for the Worse, or in Fact Not at All?

In 2011 the Supreme Court of the United Kingdom ruled that expert witnesses no longer enjoyed civil immunity from negligence actions. This immunity had formed part of our legal system for over four centuries and had been regarded as a fundamental principle of English law. The removal of such a highly regarded and influential principle has been met with criticism, and understandably so.As a result of Jones v. Kaney, an expert witness is now open to negligence actions from his or her client if his or her negligent evidence causes loss. The decision has sparked a range of debates within both the academic and professional communities with much speculation made as to the implications of the decision. Some have argued that it will fundamentally change the way expert witnesses operate in our legal system, for the worse rather than the better. Others have argued to the contrary and have looked on at the decision favourably, as it allows for litigants to seek a remedy where previously none were available.In an attempt to discover the effects, or likely effects, the role of the expert witness and the former doctrine of immunity were first considered. An in-depth analysis of the decision itself subsequently followed in an attempt to ascertain the reasoning for abolishing the immunity. Finally, a collection of the academic commentary was gathered and analysed and the consistently propounded concerns discussed. Further primary and secondary research was carried out involving the two key expert witness organisations, the Academy of Experts and the Expert Witness Institute, in a bid to ascertain whether the speculated implications were in fact consistent with the reality.What can be extrapolated from the research is that a lot of the initial concerns raised were relatively unfounded. The research gathered from the two expert witness organisations proved very useful in painting a clearer picture of the practical effects of the decision. This in turn allowed for the more significant implications to be pinpointed. They are: the concerns relating to Jointly Instructed Experts and issues relating to professional indemnity insurance. These are real concerns that ought to be addressed sooner rather than later.With only one year gone since the decision was made it was hardly surprising to find that not many concerns have transpired. Interpretation of the case since judgement was made has been very limited. However, a case of this nature does have the potential to have effects down the line, say in five or ten years. It is argued that litigation against experts will be an inevitability. Expert witnesses, perhaps anticipating this, have now sought methods of rebuilding their defences. Such subsequent events have created more points of query and may be possible areas of research and discussion in the future.

Partial confessions of an expert court witness in the prosecution and defence of alleged drug offences

PurposeThis article seeks to provide an insight into the work of an expert witness working in drug trials in Crown courts.Design/methodology/approachThe approach is a case study of a single expert witness, drawing on experiences over several years.FindingsThe evidence produced in court is subject to the personal limitations and organisational constraints of the experts involved. Prosecution often relies on unreliable and secretive sources. It is important to increase transparency and for a robust challenge to be made to some claims. Many experts are former police officers who are rarely objective or neutral, hence the need for independent experts from within the field.Research limitations/implicationsPersonal experience cannot always be generalised so limits the information presented in this case study.Practical implicationsThe role of expert witness is a career development opportunity for people working in the drugs and alcohol field.Social implicationsIt is important to understand the subjective way in which testimony and evidence is produced.Originality/valueThis paper gives a rare insight into a key aspect of the legal process.