Handbook of Psychology in Legal Contexts by edited by David Carson & Ray Bull

Author:edited by David Carson & Ray Bull [Bull, Ray]
Language: eng
Format: epub
Tags: General, Psychological aspects, Psychology, Law, Forensic Psychology, Law - Psychological aspects, Psychology; Forensic, Clinical Psychology, Evidence; Expert, Medical Law & Legislation
ISBN: 9780471498742
Publisher: Chichester : J. Wiley, c2003.
Published: 2003-01-15T09:08:27.905000+00:00

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PERSPECTIVES ON COURTS

In performing this task they built up an empirical technique of regulation called the law, in every branch of which, from contracts to crimes, appear assumptions as to why and how people act in given situations. . . . Out of this technique of regulation has grown a rough and ready science of behavior which crystallized unfortunately before the dawn of modern psychology. (Hutchins and Slesinger, 1929e, pp. 13–14) Despite its lively beginnings, interdisciplinary study of evidence fell dormant in the mid-twentieth century, perhaps due to the general retreat of legal scholarship from social realism toward process models of justice (Monahan and Walker, 1996, ch. 1). By the late 1960s the field was ‘moribund’ as the few scholars writing about evidence relied on traditional doctrinal analysis with ‘no overarching critical theory to give it life’

(Lempert, 1986, p. 439). What Richard Lempert has called ‘the new evidence scholarship’ began to emerge in the 1970s as experts in other fields, particularly statistics, epistemology, and psychology ‘discovered’ the law of evidence and began using the tools of their disciplines to address important evidentiary issues. Major symposia at Boston University (Symposium, 1986) and Cardozo Law School (Symposium, 1991) brought legal scholars together with experts from other fields to discuss problems of evidence, and the area continues to be active.

Specific Examples of Evidence Doctrine and Psychological Approaches to Illuminating Them

Hearsay is defined as an out-of-court statement made by one individual (the declarant) and presented in court by another individual (the hearsay witness) as proof of the fact asserted. Under rules initially developed through English common law, hearsay is generally inadmissible in Anglo-American courts unless it falls within an established exception to the hearsay rule. The exceptions allow the presentation of hearsay when special circumstances exist that are thought to help assure that it is reliable or where strong practical considerations favor its use (Park, 1987). For example, a statement made while under the ‘stress of excitement’ caused by the event being described may be admissible under the ‘excited utterance’ exception to the hearsay rule (Federal Rule of Evidence 803(2)), or a statement made to a physician for purposes of medical diagnosis and treatment may be admissible as another exception (Federal Rule of Evidence 803(4)).

Courts have long viewed hearsay with skepticism due to fears that it will be overvalued by jurors and therefore will be prejudicial. These fears arise in part from historic cases in which miscarriages of justice were seen to arise from the use of hearsay evidence, such as the trial of Sir Walter Raleigh (Landsman and Rakos, 1991). But these fears are primarily grounded in a psychological intuition: courts have traditionally assumed, without empirical verification, that jurors fail to adequately appreciate the unreliability of hearsay testimony (Park, 1987).

Hearsay is considered difficult for jurors to evaluate because it entails at least two levels of uncertainty. There is the possibility that the declarant (i.e. the person making the out-of-court statement) was lying or mistaken about what he or she perceived and ASSESSING EVIDENCE:

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