Expert Psychological Testimony on Credibility Issues

• Author: by Major Thomas J. Feeney
• Pages: 02

I. INTRODUCTION

Expert psychological evaluation of another witness' credibMty has provided a rich and continuing source of controversy.' As early as 1908, Hugo Munsterberg indicated that the psychologist could provide valuable information about the witness testifying in court, and recommended that the social community devote its full attention to the field.* By 1940, Wigmore heralded the approach of methods for the psychological evaluation of witnesses: "If there is ever devised a psychological test far the valuation of witnesses, the law will run to meet it . . . . Whenever the Psychologist is ready for the Courts, the Courts are ready for him."3 Thirty years later, the herald still sounded his invitation: "Modern psychology is steadily cmmessina towards definite eeneralizatians in that

'Judge Advocate Gsneral's Corps. Umted Stater Army. Cunentiy Edmr. Military Law Review. The Judge Advmate General's School. U.S. Amy. Formerly assigned BS Braneh Chef, Defense Appellate D~viaion US. Army Legal Services Agency. 1983 to 1985. Litigation Attorney Lmgation Divisian. Office of The Judge AdVOEate General, 1980 to 1983. Trd Counsel. Administrative Law Attorney, Legal Assistance Officer. and Cbef of M h t w Justice. Olfice of the Staff Judge Advocate, Fort Lee. Vxginm 1978 to 1980. S 8.. Masmchmetfs lnatitute of Technology, 1916 J D 1eum laudel Univeriity oi Pennsyivanis Law School 1978 Honor Graduate, 34th Judge Advocars Officer GraduaC Cows, 1986: Honor Graduate, 87th Judge Advocate Officer BBW Course. 1918 Author of The Complainant I Credibrlity. Erprit Tesnmony and Rape Tkiuurne Syndrome. The Army Lawyer. Sept. 1986. at 33. Member of the bars of the Commonwealth of Pennsylvania. the United States Couct af Appeals far the Fourth Cucut. the Urnfed Scales Court of Appeals for the Tenth Cncmt. the Unlted States Court of Mhtary Appedr. the Umted States Army C o w af Mihtw Renew. and the United Stater Supreme Court. Tho article WBJ originally svbmlted in satisfsetm 01 the them eiective af rhe 34th Judge Advocate Offmr Graduate Course

See, e g . Convis, Testifyma About Testiman), Piycholog&cal Evidence on Pereepiual and Memory Foetor9 Affecting fhc Cmdibhty of Teinmony. 21 Duq. L. Rev. 8 9 119831, Currm. Expert Piyehiatne Eridrnce of Prisonality Tmita. 103 U. Pa L Rev 999 11956i: Holl Eiprri Ternmony on Eyririlnras Idmtificaos Inuading the Pmurnce of the Jury? 28 Ark. L. Rev 399 119841, Juviler. Prgchiainc Opmwna a1 to Credibdily of Wifnersrs A Suggestsd Appmaeh. 48Cal L Rev 648 119601: Lerme 8 Trapp, The Psychology o( Criminal Identifies-non The Gap imm Wade to Kuby. 121 U Pa. L Rev 1079 119731, Yale, Did Your Eyer Decriue Youp E=gwt Psychological Te8t$many on the Unmiiebiiity ofEy~iritness

Idmiipoal~on, 29 Stan L Rev. 969 119771 [heremalter SmnQd Note]:

Comment. Unrdiubh Eysiiitnrai Evidence The Expart Psychologist and the Defemên Cnmmnl Cassi. 45 La L. Rev 721 119851, Commmnt: The Psychologist as Erpsrt Witness Science in the Courtmom'. 38 Md. L. Rev. 539 119791

'H Munslerberg. On the Wllness Stand 11-12 119081.'J. Wigmore, A Treatus on the Anglo-Ameriem System of Evidence Trrals at Cammon Law 368 13d. ed. 19401.

field, and towards practical skill in applying precise tmts Whenever such principles and tests can be shown to be accepted in the field of science expert testimony should and will be freely admitted to demonstrate and apply them.''< Another modern commentator has noted similar thoughts: "Expert witnesses->.e., psychiatrists and psychologists-may now be called to express their opinion to the witness' veracity . . .[The expert] may speak freely in terms of traits of character to the extent that concept is meaningful in his disopline."j

In response to the eail, iawyers have attempted to use psychological or psychiatric experts in a wide range of areas, e.g., to explain the impact of a mental condition on veracity,e to fit a witness into a psychological profile which made the witness' Story more or less believable,' to describe various "syndromes" which corroborated one party's version of events,a to venture opinions on the reliability of eyewitness identification,@ or merely as a general expert on truth.telling by other witnesses.10 Despite Wigmore's prediction, however, the courts have traditiondy disfavored expert testimony on credibility issues." More recently, however, there have been indications of a more receptive atti. tude10 which may finally see the fruition of Wigmore's 1940 prediction.

'IIIA J. Wigmare. Rigrnore on Evidence 5 935 !J Chadbourn rev 19101'3 J. Wematern Wanstems Evidence'United States Y Hipa. 88 F Supp 659 is D 6 Y 19501.'United Srafes Y Bmmm 137 F.2d 413 14th Cir 19841 Cmted States I

Mame, 15 M.J 354 1C.M.A 19831 People 119641. Sfate Y. Woods 20 OLo Mise 2d 1,

Wnlted Scsfes v. Tornhnson 20 Y J byndromel: Borders 7, State. 433 So 2d 132670, 308 S.E Zd 13 119831. Smth v State. 247 Ga. 612 211 SE.2d 678 119811 lbattered woman syndromei. Lwbsch \ State 310 N U 2d 68 IMmn 19811 lbaltenng parent syndrome1

'Umted States Y. Fosher, 590 F.2d 381 flsf Cir 19791 Umbd States V. Amard, 488 F.2d 1148 19th Cir 19731, Criglou Y Srate 183 Ark 407. 36 S.W2d 400 119311

'"Unibd Starea Y Cameron 21 hl J 59 IC M A 19651, Cnrled SLaLed V. Cor. 18 M J 12 IC M A. 19841: Omfed Stater Y A d h i . 6 C.M A. 492. IS C.M R 116 119551: United States Y Wagner. 20 h.1 J 7E8 19

F C Y R 19651. United Stabs v

Clark 12 M J 978 lA C \I R 19821

' x S ~ a Umted State3 v Barnard. 490 F.2d 907 19th Cu 19731. *sit denud, 416

6081041 119811

V. Smith, 736 F.Zd 1103 16th Clr I. cart denied, 105 S Cf 213 119841. United SLatDs V. Hd,

655 F Zd 512 13d Cr. 1961,. United States v Stsggs 553 F2d 1073 17th Cr. 19771. Umted Sfsw~

Y Partin, 493 F 2d 750 (6th Clr 19741: United States Y.

Smpes, 16 M J 172 IC.hl A. 19841. Uniced States Y Maore 15 M.J. 354 ICMA 19831 United States, Arrura. 31 M J 621 IA C hl R 19651'SLab V. Roborts. 139 Ark. 177, 677 P.Zd 280 119831, Hawkms State 326 So 2d 239 lFla D m Cf

19871 PSYCHOLOGICAL TESTIMONY

This article will examine the courts' historical treatment of expert psychological testimony affecting credibility issues and the various rationales for admitting or excluding such evidence. It will Iwk at a number of situations where the psychologist can provide valuable information and then consider the changes which the Federal and Military Rules of Evidence made in this area. Finally, it will show how such testimony should he treated under the new rules of evidence and conclude that we can expect a continuing expansion of thia form of expert testimony.

11. HISTORICAL PERSPECTIVE.

Before examining credibility issues, one must distinguish be tween a witness' credibility and his competency to testify. The two concepts are related and courts have at times confused the terms when considering credibility issues.13 "Competency" refers to a witness' qualifications to present evidence in court,14 and is decided by the trial judge alone.'6 "Credibility" refers to the weight to be given admissible testimony,'6 an issue which the jury, and not the court, decides." At common law, a number of disqualifications could make a witness incompetent. including mental infirmities. infamy, extreme youth, senility, bias, interest In the proceedings or official connection with the tribunal, spousalincapacity, or affiliation with a party.1a The common-law disqualifications have gradually disappeared.'Q The Federal Rules of Evidence now presume that a person is competent to be a

App. 19781: State Y. KM. 64 Haw. 598. 645 PPd 1330 ll98Pi: Ted0 V.

McDonouph. 450 N.E.2d 190 IMaas. App Ct. 19831: State V. Wcedo, IO Ohio Mise. Id 1. 484 K.E.2d 773 ICt Corn PI 19851.

"See, e.&, State v Roberts. 139 Ark 117, 677 P.2d 280, 284 119831 ltnd judge eonfused competency with credibility y1 excluding expert teslhony thsl B nine ysar.old mentally retarded Eiri hsd a defective memory, im~aLed verbal ability.

holding that evidencs at a witnear' insanity eouid be excluded where no objecrion wai made to the w~ltnem eampstencyl

"United States Y. Slores. 1 C M.R 47 1C.M.A. 19511: I1 J. W i o l e du~m note

- .

4. $5 478-88.

"Fed R. Evid IO4lal, Mli R. Evid. 104lal. I1 J. Wigmore. sup4 note 4, 6 487. '"Fed. R. Euid. 1041sl: MII. R. Evid. 1OllaI"Fed. R. Emd 1041el, Mil. R. End. 1041el"See S. Saltzburg. L. Sehinari & D Sehluewr, Militmy Rdes of Evidence Manual 492 12d ed. 19881.

"In 1888, the Supreme Caurl mled fhal B lunatic eadd teacity, provided he underarced the oath and could give m ~ceoynt of the matten he had -.

District of Columbia Y Armes. 107 U.S. 117 Otto1 519 118831

witness,la subject only LO the requirements that the person have personal knowledge of the matter at issue2' and be capable ofswearing to tell the truth.22 The Rules now leave almost nocategorical disqualifications of a w1tness.23

Many of the rules which have governed the use of psychiatric or psychological testimony to impeach a witness can be traced to these now defunct categories of lncomperent witnesses. As the common-law disqualifications disappeared. evidence once pre. sented to the judge to disqualify the witnes became admissible before the jury as affecting credibility. For example, courts have had little difficulty in admitting evidence of insanity,*' mental disease,zj mental deficiency,z6 drug use,27 or intoxication,ss alltraditional common-law meas where a witness' competency might be called into question. Outside these areas. however. the courts prove far less accommodating, and often ban extrinsic expert evidence an aedibility, leaving the party to develop the issue solely through cross.examination.2* This distinction became so firmly entrenched that it has been quoted as the general rule:

2d 930 (5th Ca 19641. Each ritness must hat hem she rlll testify truthfully Fed R Evid 603 Mi R. Erid 603

"Sip eag. United Slates Y Roach 590 F 2d that federal pr8clae has sbohrhed menial cap witnessl, Unrted States Y Fuentes 16 I J 41 competent wntne~~l,

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