The role of the expert witness

When psychiatrists are asked to prepare medicolegal reports or appear in court, they are usually being asked to act as expert witnesses, that is they are being asked to assist the court because of their specialist expertise. This part of the chapter is primarily concerned with the role of the psychiatrist as an expert witness. However, it should be noted that there are other types of witness, and circumstances can arise when a clinician is a witness to fact, or is a professional witness. A witness to fact is typically someone who has directly observed an incident or event. A professional witness gives factual evidence from knowledge gained in their professional work. For example, if a clinician happened to observe a serious assault and was asked by the police to give a statement detailing their observations, they would be a witness to fact. If a clinician examined and treated the injuries of a victim, and was asked by the police to give a statement about their clinical management they would be acting as a professional witness. If a clinician was asked to assess the degree of disability of an injured person for the purpose of a compensation claim, or to assess whether an assailant was fit to stand trial, they would be acting as an expert witness.

The evidence of an expert witness is only admissible in limited circumstances. The role of the expert witness is to assist the court by providing information, usually of a scientific or technical nature, which is outside the normal experience and knowledge of the judge and jury. (1J Expert evidence would not normally be admissible if the judge and jury can reach conclusions without expert assistance. For example, expert evidence may be needed in relation to understanding the motivation of a mentally ill offender, but it is unlikely to be used in understanding the motivation of a normal offender. The evidence of the expert witness should be of practical help to the court in reaching a just resolution, and the expert should not stray beyond the boundaries of his or her expertise. (2)

In the United States, the Supreme Court affirmed a high standard for the admissibility of expert evidence in Daubert v. Merrell Dow, Pharmaceuticals, Inc. (1993). The Supreme Court concluded that prior to the admission of expert testimony the judge should determine whether the testimony is based on scientific knowledge, and whether it will assist the court to understand or determine a fact at issue. The Popperian criterion of falsifiability or testability was cited as relevant in identifying scientific knowledge. The Supreme Court case thereby set a challenging standard for the admissibility of psychiatric and psychological evidence in the American courts.

Similarly specific criteria do not apply in the context of the English courts, although the underlying principles are similar. (3) Issues in civil cases

Psychiatric evidence may play a role in a range of civil cases. Four particular areas merit highlighting: mental health review tribunals, consent to treatment, child care proceedings, and personal injury claims.

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