Usurping the Role of the Jury? Expert Evidence and Witness Credibility in English Criminal Trials
| Author | Tony Ward |
| Published date | 01 April 2009 |
| Date | 01 April 2009 |
| DOI | 10.1350/ijep.2009.13.2.314 |
| Subject Matter | Article |
EXPERT EVIDENCE AND WITNESS CREDIBILITY IN ENGLISH CRIMINAL TRIALS
Usurping the role of the
jury? Expert evidence
and witness credibility
in English criminal trials
By Tony Ward*
Reader in Law, University of Hull
Abstract The reluctance of English and other common-law criminal courts to
admit expert evidence of witness credibility is rooted in two main objections:
that such evidence needlessly complicates the jury’s task and that it threatens
to ‘usurp’ the jury’s role. The ‘usurpation’ objection can be understood as
referring to a risk that the expert will be accorded unwarranted epistemic
authority on matters which it is important for the jury to decide for itself. These
objections have substance, and although they apply to expert evidence in
general they have particular force when applied to evidence of credibility. But
the jury, as a responsible fact-finder, also has a duty to attend to expert evidence
that will help it avoid ‘epistemic injustice’. Particularly in rape and sexual abuse
cases, there are good reasons for admitting some forms of expert evidence of
credibility, and concerns about ‘usurpation’ do not justify the British govern-
ment’s apparent abandonment of proposals to make such evidence more widely
admissible in rape trials.
Keywords Expert evidence; Credibility; Psychiatric and psychological evidence;
Rape; England and Wales
man known by the initials VJS stood trial in 2006 for a number of sexual
offences against N, a 13-year-old autistic girl.1A paediatrician, Dr Millns,
testified that the kind of demeanour shown by N in a video interview was
not unusual for someone with autism, and that ‘somebody who functioned at the
doi:1350/ijep.2009.13.2.314
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2009) 13 E&P 83–101 83
1RvVJS [2006] EWCA Crim 2389.
A
* Email: A.Ward@hull.ac.uk. Without any abdication of authorial responsibility, I gratefully
acknowledge the expert advice of Antony Hatzistavrou, Mike Redmayne, Paul Roberts and two
admirably thorough and perceptive anonymous referees.
level of N would find it difficult to invent a story … [or] to retain it in her memory
for any significant period of time’.2
Raymond Robinson stood trial in 1992 for the rape of Linda, a 15-year-old girl with
learning disabilities. An educational psychologist, Mrs Cornish, testified that
Linda ‘could not adopt ideas from someone else. She would have difficulties
taking them on board and relating them … She is not suggestible’.3In what
remains the leading English decision on expert evidence of credibility, the Court
of Appeal held that this evidence ought not to have been admitted: ‘the Crown
cannot call a witness of fact and then, without more, call a psychologist or psychia-
trist to give reasons why the jury should regard that witness as reliable’.4
Despite the obvious similarity of the two cases, the expert evidence in VJS was held
to be admissible. The Court of Appeal distinguished Robinson on the ground that
‘the evidence which was in question in Robinson directly related to a particular
witness. Here the evidence given by Dr Millns was of general application. It related
to a neurological condition, namely that of autism’ and to the usual character-
istics of people with that condition.5The court was at pains to stress that it had not
considered all the authorities and was ‘not attempting to lay down any principle
of general application’.
The dilemma epitomised by these two cases is that expert evidence of credibility
complicates the jury’s task and gives rise to fears that the expert will ‘usurp’ the
jury’s role, yet excluding it could lead to serious injustice if some groups of crime
victims find that their evidence is met with unwarranted scepticism. The
distinction drawn in VJS between ‘general’ evidence and evidence about a
particular victim is one that has also been advocated by commentators on sexual
and domestic violence,6and was adopted by the government as part of its
proposals for reform of rape trials (the subsequent fate of this proposal is
discussed below).7As applied to Dr Millns’ evidence, however, it is hardly
84 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
EXPERT EVIDENCE AND WITNESS CREDIBILITY IN ENGLISH CRIMINAL TRIALS
2 Ibid. at [9].
3RvRobinson (1994) 98 Cr App R 370 at 373.
4 Ibid.
5RvVJS [2006] EWCA Crim 2389 at [13].
6 P. N. S. Rumney and M. Morgan-Taylor, ‘The Use of Syndrome Evidence in Rape Trials’ (2002) 13
Criminal Law Forum 471; M. Madden Dempsey, The Use of Expert Witness Testimony in the Prosecution of
Domestic Violence (CPS: London, 2004); L. Ellison, ‘Closing the Credibility Gap: the Prosecutorial Use
of Expert Witness Testimony in Sexual Assault Cases’ (2005) 9 E&P 239.
7 Office for Criminal Justice Reform, Convicting Rapists and Protecting Victims <http://www.
homeoffice.gov.uk/documents/cons-290306-justice-rape-victims>, accessed 12 February 2009;
Convicting Rapists and Protecting Victims: Response to Consultation <http://www.cjsonline.gov.uk/down
loads/application/pdf/Response%20to%20rape%20consultation.pdf>, accessed 12 February 2009.
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