Closing the Credibility Gap: The Prosecutorial Use of Expert Witness Testimony in Sexual Assault Cases

Published date01 December 2005
Date01 December 2005
DOIhttp://doi.org/10.1350/ijep.2005.9.4.239
Subject MatterArticle
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 239
PROSECUTORIAL USE OF EXPERT WITNESS TESTIMONY IN SEXUAL ASSAULT CASES
H
(2005) 9 E&P 239–268
Closing the credibility gap:
The prosecutorial use of
expert witness testimony
in sexual assault cases
By Louise Ellison*
School of Law, University of Leeds
Abstract Recent Home Office research indicates that complainants in sexual
offence cases still struggle to gain credibility in the eyes of police, prosecutors
and jurors. This article examines some of the credibility barriers confronting
victims of sexual offences within the criminal process. In the USA, prosecutors
have utilised expert witness testimony in an effort to educate jurors and restore
credibility to complainants’ accounts. This article critically assesses these
developments and explores the potential admissibility of ‘educational’ expert
witness testimony in criminal courts in England and Wales.
gap’ and recent years have seen the publication of a number of detailed studies
examining the process of attrition in rape cases.2 The most recent report, published
in February 2005, suggests that suspicion and disbelief continue to operate as
significant barriers to the successful prosecution of sexual assault in England and
Wales.3 The report speaks of a ‘culture of scepticism’ with victims still battling to
gain credibility at each stage of the criminal process.4 This echoes previous findings
ome Office figures on reported rape cases show an ongoing decline in the
conviction rate for England and Wales, putting it at an all time low of 5.6
per cent.1 The government has expressed concern about the growing ‘justice
* Email:l.e.ellison@leeds.ac.uk.
I am indebted to the Leverhulme Trust for the award of a Research Fellowship which afforded
me the time to conduct work in this area.
1 L. Kelly, J. Lovett and L. Regan, A Gap or a Chasm? Attrition in Reported Rape Cases, HORS 293
(Home Office: London, 2005).
2 J. Harris and S. Grace, A Question of Evidence? Investigating and Prosecuting Rape in the 1990s,
HORS 196 (HMSO: London, 1999).
3 Kelly, Lovett and Regan, above n. 1.
4 Ibid. at xii.
240 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
PROSECUTORIAL USE OF EXPERT WITNESS TESTIMONY IN SEXUAL ASSAULT CASES
of the CPS Inspectorate/HM Inspectorate of Constabulary’s Joint Inspection into the
Investigation and Prosecution of Cases involving Allegations of Rape, which specifically
addressed the issue of credibility assessment.5 The study notably found that
complainants’ behaviour after an assault was a key feature taken into account by
prosecutors in their credibility determinations.6 Significantly, the report suggested
that some factors interpreted by prosecutors as indicators of untruth or unreliability
betrayed an inadequate understanding of the impact of rape and the diverse reactions
of victims in its aftermath. Accordingly, it recommended that prosecutors receive
guidance which could ‘help them place what initially might be viewed as illogical or
inexplicable responses into context’.7 The report also concluded that information
should be given to jurors ‘to overcome the myths and preconceptions that they may
have and which the defence so often try and enforce’.8 There was, however, no
exploration of the means by which this information might be conveyed to jurors,
with the report merely stating this was ‘more problematic’.
Other common law jurisdictions have of course already grappled with this issue. In
the USA, for example, expert witness testimony is used routinely to ‘educate’ jurors
about the impact of rape and the complex reactions of complainants. In most cases
expert witness testimony has been used specifically to counter defence attempts to
portray ‘normal’ post-offence behaviours as ‘unusual’ or inconsistent with a rape
complaint. This evidentiary initiative has proved controversial with the introduction
of so-called ‘syndrome’ testimony in sexual assault cases provoking particular
criticism. This article examines the debate and considers the potential admissibility
of ‘educational’ expert witness testimony in criminal proceedings in England and
Wales. Such an analysis is made timely by the publication of a recent report by the
Crown Prosecution Service of England and Wales on the potential use
of expert
testimony in the prosecution of domestic violence.9 The report focuses on the major
problem of complainant withdrawal in domestic violence cases and the difficulties
this presents in terms of juror evaluation of complainant credibility.10 Domestic
violence victims, the report states, ‘frequently engage in behaviour that may appear
inconsistent with claims that they have suffered abuse’.11 The report concludes by
recommending the wider prosecutorial use of expert witness testimony in domestic
5 HMCPSI/HMIC, A Report on the Joint Inspection into the Investigation and Prosecution of Cases
Involving Allegations of Rape (HMCPSI: London, 2002).
6 Ibid. at 55.
7 HMCPSI/HMIC, above n. 5 at 55.
8 Ibid. at 12.
9 M. Dempsey, The Use of Expert Testimony in the Prosecution of Domestic Violence (CPS: London,
2004).
10 On the evidentiary challenges facing prosecutors in domestic violence cases, see L. Ellison,
‘Prosecuting Domestic Violence without Victim Participation’ (2002) 65 MLR 834.
11 Dempsey, above n. 9 at 11.

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