In the Media

Expert witnesses can help juries to judge fairly

PUBLISHED March 30, 2006

THE idea of using expert witnesses to debunk myths about rape victims? behaviour is a bold move at a time when their role in criminal trials is under intense scrutiny and their reputation under attack.

But with a crime such as rape, where there is often no other witness, the idea of introducing an expert witness to give ?context? to allegations has the backing of some leading legal figures, including the Director of Public Prosecutions. 
Ken Macdonald, QC, the DPP who floated the idea last autumn as one of several to improve rape conviction rates, said yesterday that the use of experts could give ?the jury objective material against which other evidence in the case could be fairly judged?.

In rape trials it was often ?one person?s word against another and the prosecution has to exclude all doubt before obtaining a conviction. This can be very challenging. There are all sorts of stereotypes and assumptions surrounding rape which might affect jurors? verdicts unfairly: why didn?t she go straight to the police; why did she go back into the other room as though nothing had happened to her?? He said that juries also made assumptions based on what a victim was wearing. Assumptions could vary according to the sex of the juror, with women sometimes being more judgmental then men.

Expert evidence in rape cases has been used in the United States, Canada and Australia. Knowledge of behaviour ? such as why a woman delayed reporting a rape or returned to an abusive partner ? is admitted in trials there.

The DPP said: ?The idea is not to bolster the credibility of a witness but to provide the jury with objective material against which other evidence in the case can be most fairly judged.?

Expert psychologists could give general evidence on delay in reporting, minimising of injuries, inconsistencies in account, why the victims blame themselves and why they may not resist or escape.

Jennifer Temkin, a law professor at Sussex University, has highlighted the attitude of jurors as one of the biggest challenges in rape trials. She told the Bar conference last autumn: ?Juries can impose their own morality on cases. There are still abiding views about proper female behaviour. There is a reluctance to accept gender equality in the sexual sphere.?

According to some lawyers yesterday, the change would help to overcome these preconceptions. Karon Monaghan, a barrister with Matrix Chambers, said: ?This would help tackle the problem that often judges and juries lack the experience to make fair judgments in rape cases because of stereotypical assumptions about how victims should behave.?

Yesterday?s consultation paper acknowledges that critics will argue that how a person reacts after rape is a matter of common sense and introducing experts is unnecessary.

Any possible misconceptions among jurors could also be equally addressed by the prosecution, they say.

Stephen Hockman, QC, and chairman of the Bar, said that the proposals deserved careful consideration and debate. But he cautioned: ?My personal view is that any such expert evidence would need to be focused on the facts of the particular case to enable a jury to say whether it was of some relevance. If it was too general, then it would be of little help.?