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Psychologists as Expert Witnesses in Australian Courtrooms

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Psychologists as Expert Witnesses in Australian Courtrooms

Elena Gianvanni and Stefanie J. Sharman

School of Psychology, Deakin University, Melbourne, Australia

Mental health professionals assist Australian courts and tribunals with explanations about
human behaviour and mental processes related to offending behaviour. Contrary to other
Downloaded by [Deakin University Library] at 20:13 30 April 2015

witnesses who are only allowed to give evidence in relation to what they directly heard or
saw, mental health professionals are allowed to express opinions because they are recognised
as expert witnesses with specialised knowledge. However, in Australia at least, little is
known about how these expert witnesses are chosen and how they meet the requirements of
possessing “specialised knowledge”. In this article, we provide a brief history of expert
witnesses in the courtroom, including the use of psychologists as expert witnesses. We then
highlight some of the concerns that legal professionals have raised about psychologists as
expert witnesses in the limited number of studies that have been conducted in Australia, the
United States, and the United Kingdom. Finally, we raise questions about how psychologists
are chosen to be expert witnesses in Australia and introduce directions for future research.
Key words: expert witnesses; forensic psychology; psychologists; testimony.

No one will deny that the law should in
some way effectively use expert knowledge
wherever it will aid in settling disputes. The
only question is as to how to do it best
(Judge Learned Hand, 1901, p. 40).
Mental health professionals assist Australian
courts and tribunals on a daily basis with
explanations about human behaviour and
mental processes related to offending behav-
iour (Allan & Davis, 2010). Contrary to other
witnesses who are only allowed to give evi-
dence in relation to what they directly heard
or saw, mental health professionals are
allowed to express opinions because they are
recognised as expert witnesses (Moles,
2007). The aim of this article is to examine
how expert witnesses are selected to give evi-
dence in Australian courtrooms, with a focus
on psychologists as expert witnesses. We
begin with a brief history of expert witnesses
before briefly discussing the changes to the
expert opinion rule from the “expert test” to
“specialised knowledge”. We then describe
how psychologists have become expert wit-
nesses and, finally, raise questions regarding
the “specialised knowledge” needed to be
considered an expert under Australian law
within the field of psychology.
Brief History of Expert Witnesses
The English judicial system introduced the use
of specialist or expert knowledge at common
law sometime around the 13th century.1
Experts were used in three main ways. First,
people were summoned in legal proceedings
(both civil and criminal) as jurors for either
“an inquest of neighbours” (Jackson, 1937;
Stephens, 1896) or as jurors with specialised
knowledge; they constituted an expert or

Correspondence: Stefanie Sharman, School of Psychology, Deakin University, 221 Burwood Hwy, Bur-
wood, 3125, Victoria, Australia. Email: stefanie.sharman@deakin.edu.au

! 2015 The Australian and New Zealand Association of Psychiatry, Psychology and Law
 2 E. Gianvanni and S. J. Sharman
special jury (Golan, 1999; Stephens, 1896).
During an inquest of neighbours, people who
were familiar with the person involved in a
contentious matter were summoned to disclose
their knowledge and predetermined opinions
of the accused (Golan, 1999; Jackson, 1937;
Stephens, 1896). When acting as jurors with
specialised knowledge, people were sum-
moned to court if their trades, skills or knowl-
edge were relevant to the case before the court
(Golan, 1999; Jackson, 1937; Stephens, 1896).
The second way in which experts were
used, in the 14th to 19th centuries, was in the
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form of expert opinion provided by
“assessors” in legal proceedings. This prac-
tice appears to have been mostly utilized by
the Admiralty Court; for example, decision-
makers called on assessors to advise them on
matters of nautical skill and seamanship
(Beuscher, 1941; Dickey, 1970). These asses-
sors were not actually summoned to assess
anything, but rather to provide courts with
information based on their special skills,
knowledge or experience. They were direct
advocates to the judges and these assessors
were neither sworn nor cross-examined
(Dickey, 1970). Although assessors were ini-
tially regarded highly by the judicial system,
this relationship eventually became to be per-
ceived as a dependency and created discon-
tent among professionals (NSW Law Reform
Commission, 2005).
The third way in which experts were used
was through the use of “expert witnesses”.
The presence of these experts can be dated
back to the 14th century when surgeons, for
example, were occasionally summoned to
court to establish whether wounds on cadavers
were fresh and to seek their opinion regarding
causes of death (Golan, 1999; NSW Law
Reform Commission, 2005). Similarly, gram-
marians were summoned to court, during the
15th and 16th centuries, to explain the mean-
ing of technical Latin words and phrases con-
tained in contracts and other commercial
documents (Golan, 1999; Hand, 1901).
The use of expert juries, assessors and
expert witnesses was popular, but this
popularity declined rapidly during the first
half of the 19th century following the
“adversarial revolution” (Golan, 1999; NSW
Law Reform Commission, 2005). Expert
juries were replaced by the modern form of
jury, which ideally bases its decisions on only
the evidence placed before it by witnesses
and not on its members’ own knowledge of
the facts in a trial (NSW Law Reform Com-
mission, 2005). The assessors’ role in court
reduced from the beginning of the 20th cen-
tury because of their perceived prejudice
towards the court and the lack of opportunity
for cross-examination (Golan, 1999; NSW
Law Reform Commission, 2005). Following
the “adversarial revolution”, expert
witnesses’ roles were significantly reshaped
to fit within the newly changed judicial sys-
tem (Golan, 1999; NSW Law Reform Com-
mission, 2005).
Adversarial Revolution
The adversarial revolution triggered numerous
changes in the English judicial system. Crimi-
nal proceedings and their processes were
completely reformed and rules pertinent to the
admissibility of evidence before the court
were introduced (Golan, 1999; NSW Law
Reform Commission, 2005). The adversarial
revolution also led to an increased presence of
lawyers in courts. Prior to the 18th century,
the judge was typically in charge of examining
and cross-examining witnesses during pro-
ceedings, as well as adducing evidence to tri-
als (Golan, 1999; NSW Law Reform
Commission, 2005). However, after the adver-
sarial revolution, the court’s involvement in
the litigation process diminished and, by the
end of the 18th century, lawyers became more
heavily involved. The two parties in criminal
matters ! defence and prosecution ! took
over the examination of witnesses. To regulate
this examination, as well as the admissibility
of evidence and the manner in which evidence
was presented before the jury, two legal doc-
trines were established: the hearsay doctrine
and the opinion doctrine.

The hearsay doctrine was designed to limit
testimony based on personal observations; the
opinion doctrine was designed to control the
way in which the jury received evidence and
how experts communicated their evidence
(Golan, 1999). Today, the hearsay doctrine is
known as the hearsay rule, Section 59 of the
Commonwealth Evidence Act 1995. Today,
the opinion rule stipulates that “evidence of an
opinion is not admissible to prove the exis-
tence of a fact about the existence of which
the opinion was expressed” (Section 76 of the
Commonwealth Evidence Act 1995).
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The introduction of these two rules
completely changed the giving and receiving
of evidence in courts. Following the develop-
ment of these two doctrines, witnesses’ opin-
ions were no longer admissible and a problem
arose around how expert witnesses could give
evidence if they could not provide their opin-
ions. This problem was resolved through the
creation of the Section 79 Exception: opinions
based on specialised knowledge.
From Expert Test to Specialised
Knowledge
The exception to the opinion rule has changed
several times over the years and across juris-
dictions in England, the USA and Australia.
For our purposes, the latest exception rule of
the Commonwealth Evidence Act (1995) will
be considered. Section 79(1) of the Evidence
Act 1995 states: “If a person has specialised
knowledge based on the person’s training,
study or experience, the opinion rule does not
apply to evidence of an opinion of that person
that is wholly or substantially based on that
knowledge”.
Section 79 requires a close connection
between the opinion provided by experts and
their specialised knowledge. Furthermore,
this knowledge must be based entirely on
their training, study or experience, which is
to be established in their written and/or oral
testimony. Prior to the implementation of the
current Section 79, the knowledge require-
ment that opinion evidence had to meet
Psychologists as Expert Witnesses 3
before admission in court was whether the evi-
dence passed the “field of expertise” test
(McClellan, 2009). Over the years, several
approaches have been applied to guide judges
in their decision. Two well-known approaches
were the Frye test and the Daubert test (Freck-
elton & Selby, 2013; McClellan, 2009). These
approaches were based on United States
Supreme Court cases, which have significantly
influenced Australian common law over the
years (Freckelton & Selby, 2013; Vigilante,
2000).
The current Section 79, however, no lon-
ger places emphasis on the field of expertise,
but rather on specialised knowledge. This dis-
tinction was purposely made by the Australian
Law Reform Commission (ALRC) when
reviewing the former Evidence Act. The inten-
tion was to create a more liberal catch-all term
that “was intended to extend at common law,
and to emphasise that experience can be
sounder basis for opinion than study . . . is not
restrictive; its scope is informed by the avail-
able bases of training study and experience”
(Civil Trials Bench Book, para. 27).
The test for the decision-makers is to
assert that the “there must be knowledge, as
opposed to an understanding or belief . . . and
the knowledge must be specialised rather
than being of a level existing in the
community” (McClellan, 2009, pp. 9!10).
This specialised knowledge test appears to be
a more straightforward test than the previous
field of expertise tests and, as purposely
intended, it has created a more liberal thresh-
old of admissibility of expert opinions. This,
however, has also created problems and has
not “prevented unreliable expert evidence
gaining access to criminal trials” (Edmond,
2008, p. 2). Indeed, the specialised knowl-
edge test has important implications for psy-
chologists testifying as expert witnesses.
Psychologists as Expert Witnesses
Psychologists began collaborating and testi-
fying about psychological phenomena in
criminal and civil proceedings around the
 4 E. Gianvanni and S. J. Sharman
18th century in Europe (Weiner & Otto,
2013). In 1908, when Hugo Munsterberg pub-
lished On the Witness Stand, he was one of
the first professionals to argue that psycholo-
gists had valuable expertise to offer the judi-
cial system, especially on issues such as
attention, memory and perception (Weiner &
Otto, 2013). As psychology continued to
develop as a science, the judicial system
began to use psychologists in court proceed-
ings all around the world with the first known
psychologist appearing an expert witness in
an American court in 1921 (Weiner & Otto,
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2013). However, because psychologists’ for-
mal training lacked a medical degree, their
testimony and level of expertise were often
questioned in court (Louisell, 1955, 1957;
Schulman, 1967; Weiner & Otto, 2013).
Indeed, psychology was one of the last scien-
ces to be allowed inside the courtroom.
It was not until 1962 that psychologists
were allowed to provide expert testimony on
the mental state of the defendant at the time
the offence was committed (Weiner & Otto,
2013). This decision originated from the D.C.
Circuit Court of Appeal held in Jenkins v.
United States where Judge David Bazelon
(1962, para. 28) stated that:
To warrant the use of expert testimony, two
elements are required. First, the subject of
an inference must be so distinctively related
to some science, profession, business, or
occupation as to be beyond the ken of the
average layman. Second, the witness must
have such skill, knowledge, or experience in
that field or calling as to make it appear that
his opinion or inference will probably aid
the trier in his search for truth. The knowl-
edge may in some fields be derived from
reading alone, in some from practice alone,
or as is more commonly the case, from
both. The test is whether the opinion offered
will be likely to aid the trier in the search
for truth.
His Honour’s opinion led to the break-
down of the previously unchallenged assump-
tion that psychiatric and other medical fields
were superior to psychology. As a result, an
increasing number of psychologists began
appearing in court proceedings in the United
States (Weiner & Otto, 2013).
Selecting Psychologists as Expert
Witnesses
Given that psychologists’ testimony can have
a dramatic impact on the outcome of a case,
how are these expert witnesses chosen? In
Australia at least, there is no formal process
that psychologists must go through in order
to provide their expert opinion to the court.
Indeed, it appears that apart from word of
mouth, which is believed to be the predomi-
nant method of selecting psychologists, the
easiest way to access a psychologist to pro-
vide expert testimony is through the Austra-
lian Psychological Society’s “find a
psychologist” service. All of the psycholo-
gists located through this website have the
necessary qualifications to be registered as a
psychologist with the Psychology Board of
Australia (PBA) under the Australian Health
Practitioner Regulation Agency (AHPRA)
and some of them have also specialist college
memberships with the Australian Psychologi-
cal Society (APS), in particular the APS Col-
lege of Forensic Psychologists.
Although these psychologists may have
the necessary qualifications to be registered,
very little is known regarding the quality of
the services that they provide to the judicial
system. Most of the research available to date
on this topic has been conducted on expert
witnesses in general. The scarce research
available, however, suggests that professio-
nals undertaking expert services ! including
psychologists ! do not always provide good
expert evidence (Foster, 1898; Haas, 1993;
LaFortune & Nicholson, 1995; Leslie,
Young, Valentine, & Gudjonsson, 2007;
Nicholson & Norwood, 2000; Packer, 2008;
Yuille, 1989). For example, in one Australian
study, 244 judges responded to a survey about
expert evidence in the courtroom (Freckelton,
Reddy, & Selby, 1999). Results highlighted
the discontent of judges regarding expert

witnesses. Some of the problems identified
were the lack of comprehensibility of expert
evidence from psychiatrists and psycholo-
gists, partisan bias, lack of training of experts,
lack of consideration of the complexity of
their evidence (e.g., jurors unable to under-
stand the technicality of evidence), the utility
of expert opinions, jargon in language
employed, experts exceeding the parameters
of their expertise, failure to prove the bases
of expert opinions and poor examination and
cross-examination performance. Similar
results were found with a sample of 203 mag-
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istrates (Freckelton, Reddy, & Selby, 2001).
Other research has shown similar issues
with expert evidence in other countries. In
the United States, for example, research con-
ducted with legal representatives in Okla-
homa showed that they were dissatisfied with
the quality of pre-trial competency reports; in
particular, with the lack of descriptive back-
ground of the defendants and their history
and psychiatric conditions and psycho-legal
abilities (LaFortune & Nicholson, 1995).
Research with judges, prosecutors and
defence attorneys in Virginia revealed that
they preferred testimony from psychiatrists
and psychologists holding doctoral-level
degrees (compared with lower level degrees)
(Redding, Floyd, & Hawk, 2001). Further-
more, judges typically wanted more informa-
tion from experts, whilst prosecutors were
less interested in speculative opinions. By
contrast, defence attorneys were most inter-
ested in clinical diagnosis and theoretical
explanations of their client’s behaviour (even
if not exculpatory).
Research conducted in England has
examined criminal barristers’ opinions of
clinical psychologists and psychiatrists as
expert witnesses (Leslie et al., 2007). Sixty-
two criminal barristers responded to a survey
about expert witnesses’ reports, oral testi-
mony, professional training and presentation
of evidence in court. The findings suggested
that criminal barristers had more contact with
psychiatrists than clinical psychologists. The
barristers expressed concerns regarding the
Psychologists as Expert Witnesses 5
poor quality of the testimony provided, irre-
spective of the profession of the expert. The
barristers’ most common complaint was the
problem with experts providing inconsistent
opinions in their oral testimony and written
reports.
Taken together, the research suggests
that, regardless of country or jurisdiction,
problems with psychologists’ expert testi-
mony have been identified. In particular,
these problems have centred on the compre-
hensibility and complexity of the information
provided in reports and testimony, inconsis-
tencies between reports and testimony, and
the quality of reports and testimony. These
problems point to a lack of training in giving
expert evidence and indeed, we know little
about the experience and training that these
psychologists have received before they are
selected to appear as expert witnesses in the
courtroom.
Conclusion
This article has highlighted a major gap in the
literature on psychologists testifying as expert
witnesses in Australia. Apart from the fact
that psychologists have the appropriate quali-
fications and are registered, little is known
about how they are selected to provide their
expert evidence and what constitutes
“specialised knowledge” or psychological
expertise. As Golding (1992) stated: “Perhaps
one of the most controversial aspect of psy-
chological expertise (or, for that matter, any
expertise) is the problem of knowing when
the specialized knowledge is sufficiently reli-
able and valid to qualify, either scientifically
or legally, as expertise. A corollary is the
determination of when a person has such
expertise” (p. 254)
Given that having this knowledge should
be what defines them as experts, we need a
better picture of the knowledge that they
have, how these professionals acquire and
develop expertise, and the quality of the testi-
mony that they provide to the judicial system.
Future research should examine at least three
 6 E. Gianvanni and S. J. Sharman
questions. First, how do legal representatives
(solicitors, barristers) in Australia choose
psychologists to provide written or oral
expert opinions? Second, what do legal pro-
fessionals (solicitors, barristers, judges and
magistrates) currently understand of the prac-
tice of psychology, including the different
specialties, competencies and types of psy-
chological expertise and who makes a “good”
expert witness? Third, what qualifications,
training, and experience do psychologists
appearing as expert witnesses in Australian
courtrooms have?
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Once we understand more about the cur-
rent practice, we should be able to implement
strategies that increase the quality of the evi-
dence given by psychologists when they act
as expert witnesses in Australian courtrooms.
These strategies may include the publication
of guidelines for lawyers about the key quali-
ties to look for when commissioning a psy-
chologist to provide expert testimony for a
particular case, as well as providing a better
understanding regarding the difference
between possessing skills, competencies and
expertise. To date, there are no established
professional standards to be upheld when act-
ing as experts or claiming psychological
expertise to assure quality but “it is under-
stood that poor quality should be dealt with
by disciplinary tribunals . . . however this is
seldom the case” (Freckelton, 2013, p. 7). As
a result of this increased quality of expert evi-
dence, there should be a decrease in legal pro-
fessionals’ complaints about psychologists as
expert witnesses. Furthermore, there should
be less chance of poor evidence impacting
upon the outcome of cases in which expert
witnesses testify.
Note
1. This history is based on the English judicial
system. It should be noted, however, that both
the American and Australian judicial systems
have been significantly shaped by the English
system and have followed a similar course of
development regarding expert witnesses.
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