Federal Court: Man accused of rape has no right to present expert testimony that some women lie about rape . . . because everyone knows that

[–]thingamagizmo 19 points20 points21 points 16 years ago (9 children) | Copy Link

[–]Sajkoism 4 points5 points6 points 16 years ago (6 children) | Copy Link

[–]hopeless_case 4 points5 points6 points 16 years ago (5 children) | Copy Link

[–]anonymous1 2 points3 points4 points 16 years ago* (4 children) | Copy Link

The distinction that is important to draw deals with the pathology of post-traumantic stress / post-rape syndromes. It would be like a psychologist telling you that anger and rage issues are common in war related PTSD.

Where there are observable and confirmable symptoms that reliably appear in post-rape cases, we're talking about a very specific trigger and result: rape, and a delay.

EDIT: I want to be clear. If there is no real science to the syndrome, then it would not be admissible either. What we are looking for is essentially: something that is generally accepted in the field of mental health, something determined using reliable methods, and in a manner applied reliably to the facts at hand, ultimately leading to a conclusion drawn to a level of certainty commensurate with professionals in the field. This is a really rough restatement of what courts are generally looking for. For more info google/wikipedia Daubert and Kumho Tire and their progeny.

To get very specific on the evidence part:

1) The delay in reporting is conditionally relevant. It is relevant only if she was actually raped and exhibited symptoms of the syndrome, and thus it actually was related to why she, specifically, delayed reporting. But, not if it is just about a random woman.

How this pans out in a case:

if there is no rape evidence other than that of the expert, then the expert's testimony would be thrown out before the issue got to a jury because it failed to meet the standard for conditional relevance. Thus, there would be no evidence and then an acquittal would follow.

2) On the other hand, the supposed expert on people lying about rape doesn't follow the same logical path. It does not become relevant if she was raped. In fact, it only becomes relevant if she was not raped, then the question is merely: do people lie about a certain topic.

Whether people are willing to lie about any topic, specific or general is a question of credibility. Does the jury believe this person? Credibility is solely in the hands of the jury. Experts don't get to get up on the stand as an expert and say that a witness is lying.

If there is an actual witness and say something different happened, that is different. Then there are competing stories. But who decides? The jury; and no judge can tell the jury to believe one person over the other. A lawyer can't get up on his summation and say: "I believe X is lying" either.

Rather than going much deeper into this, I will wait if you have any questions.

[–]hopeless_case -1 points0 points1 point 16 years ago (3 children) | Copy Link

[–]anonymous1 1 point2 points3 points 16 years ago* (2 children) | Copy Link

You've understood a good part of it, but the next step is crucial.

To answer your first question: 1) No, I don't believe the expert in this case should only testify after the jury decides guilt. 2) The judge made the right call in disallowing expert testimony on whether people lie about rape.

Think about tying things to the reporting witness. The defense attempted to offer expert testimony that people lie about rape.

Perhaps this example will make it clear (bear with the hypothetical):

Assume the following for the sake of argument:

The reporting witness waited a week to report
The Prosecution's expert testified that it was normal to delay reporting in cases of rape.
Assume the defense expert was going to testify about the syndrome itself, the one with post-rape symptoms, the same psychological disorder as the prosecution expert.
Assume also, that as a psychologist, the defense expert was willing to testify that generally a maximum of two-day delays are associated with stranger rape and generally one week with acquaintance rape.
Assume they now provide evidence that this was stranger rape
The jury can believe either expert witness.

As a result, the jurors can either believe the delay implies lying or doesn't, but ultimately the jury will have to decide.

Should the defense expert in the hypothetical be permitted to testify to that: Yes. The implication from the testimony is that she is faking the symptoms (and ultimately lying). But the expert is doing so on the scientific understanding of a particular disorder that a person is claiming. Ultimately, the jury can decide whether they believe the Prosecution expert or the defense expert, and as a result what effect it has on the case.

Now to the difference in this case:

It appears that the proposed defense expert wasn't going to testify about the psychology, but rather statistics.

The problem with statistics is even if the statistics are 99 out of 100 times, a person lies, in this individual case it does not make the reporting witness any more likely or less likely to be lying. In fact, even if the prosecution brought 100 cases and the first 97 were found to have lying reporting "victims," and the 98th and 99th case were people telling the truth, that does not make it any more or less likely that the 100th case reporting witness is telling the truth or lying. Even though we've had double our truth quota.

To examine that, it would be good to understand the Gambler's Fallacy. Simply put, when it comes to certain statistical events, the happening of one doesn't influence the happening of another (flipping a coin once won't change the outcome of the second flip). Here, testifying that people are X% likely to lie is like the % that you'll get a heads or a tails. But, heads and tails in other cases don't influence here. How do you tie what the defense is going to say and make it personal and relevant to this particular reporting "victim?" That is important.

If the defense expert's testimony was premised on the significant numbers lie, the ultimately problem is that you cannot tie it specifically to that one reporting witness.

Evidence of a person's character for truthfulness is not harmed by statistics in general, but by acts of deceit or untruthfulness, or by reputation. Any number of ways, but not that one.

So far as I understand it from the news report.

[–]hopeless_case 0 points1 point2 points 16 years ago* (1 child) | Copy Link

The problem with statistics is even if the statistics are 99 out of 100 times, a person lies, in this individual case it does not make the reporting witness any more likely or less likely to be lying

...

gambler's fallacy

Suppose I flip a coin 10 times, which we already know to have 50% chance of heads or tails, and it comes up heads 8 times. The gambler's fallacy would be to expect the next flip to have a greater chance of tails because of the earlier run of heads, thinking that over time they have to "even out". The correct expectation is that the next flip has a 50% chance of heads and a 50% chance of tails.

This raises the question: how do you establish the probability of any given "coin" coming up heads? You make a large number of flips and keep count of how many times it comes up each way.

So when you said:

The problem with statistics is even if the statistics are 99 out of 100 times, a person lies, in this individual case it does not make the reporting witness any more likely or less likely to be lying

you were mistaken. If, over a large number of samples, women were found to lie 99 times out of a 100, that would indeed establish the probability of a randomly chosen woman lying to be 99%. What it wouldn't do is make the probability of the next randomly chosen woman lying be any higher than 99% after a run of 10 that didn't lie. that would be the gambler's fallacy.

Getting back to your expert witness examples, I don't think you can say the first statement was psychological and the second statistical. They were both psychological and statistical.

The first one said 1) a woman exhibiting some observable symptom of psychological disorder X is Y% likely to wait more than N days to report a rape.

while the second one said: 2) a woman with normal psychology reporting a rape is Z% likely to have been lying when she reported the rape.

Both statements are making probability statements about the behavior of people with assumed psychological states.

So this is a clear double standard on the part of the judge in allowing one sort of expert testimony and disallowing the other.

[–]anonymous1 0 points1 point2 points 16 years ago* (0 children) | Copy Link

Unfortunately, your conclusion doesn't follow. There are two flaws in the reasoning and I'll take each separately.

This is the first problem statement:

that would indeed establish the probability of a randomly chosen woman lying to be 99%.

It doesn't establish that this woman is in the 99% or 1%. You said random, and that is fine. But random is not the standard for a trial against a specific person. You need to put into evidence something relevant to this particular witness/woman. Even assuming that we can substantiate this 99% determination, it does not tell us which side she is on, either way. That is the problem. Can that expert help us determine which side she is on? No. So what is the expert doing? Just informing us about whether people in general tend to lie under certain circumstances. But the statements give no information to the jury about whether this person is telling the truth or lying in this instance.

Remember that the statistics part is person agnostic. A coin is a coin is a coin. A person is a person.

As to your second conclusion, you talk about the experts both talking about "behavior of people with assumed psychological states." But, I told you in the beginning of the last reply: if there was no science behind a psychological condition, then the prosecutor's witness would not have been able to testify to it either.

This is why the insanity defense analogy is important. Make sure you read this part: If you had someone testify about whether he believed a person was schizophrenic or not and how paranoid delusions could destroy a sense of right and wrong, that would probably be admissible if that particular person suffered those paranoid delusions and that person was schizophrenic. That is our prosecutor's expert.

In contrast, the DEFENSE expert in analogy would be someone who said: 9 times out of 10, people lie about or fail to prove an insanity defense. The problem with that statement is that there is no logical inference that we can draw that will allow us to say that this particular defendant is lying or telling the truth in this particular case.

You don't get to admit that into evidence because it has NO BEARING on whether THIS PARTICULAR defendant has lied or will fail to prove insanity.

If this person is genuinely insane, what inference would be drawn from admitting the testimony of the defense expert in analogy? It would prejudice a jury to believe that the person was faking it, not based on what THIS DEFENDANT DID, but based on what other people have done.

Truly, if you cannot get the distinction in the insanity defense, then it explains your trouble with the decision that a learned judge made. It has to be relevant to this specific defendant's actual behavior and actual status.

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[–]anonymous1 2 points3 points4 points 16 years ago* (2 children) | Copy Link

Trials are peculiar places with peculiar rules. Credibility (whether someone is telling the truth or lying) is a question solely for the jury. A lawyer cannot on summation say: "I believe X is lying" and neither can a judge say "I believe X is lying." In fact, experts cannot say "I believe X is lying." A first-hand witness can say: "I saw it with my own eyes differently than X. That's why I think she's lying."

But the jury can weigh the credibility of the first-hand witness and X, and only the jury gets to decide which was telling the truth - no one gets to tell the jury which "in their opinion" is telling the truth.

The difference for the prosecution expert has to do with a slightly different angle.

The distinction that I draw deals with the pathology of post-traumantic stress / post-rape syndromes.

Where there are observable and confirmable symptoms that reliably appear in post-rape cases, we're talking about a very specific trigger: rape, and a delay.

To get very specific on the evidence part:

The delay in reporting is conditionally relevant. It is relevant only if she was actually raped and exhibited symptoms of the syndrome, and thus it actually was related to why she delayed reporting.

How this pans out in a case:

if there is no rape evidence other than that of the expert, then the expert's testimony would likely be thrown out before the issue got to a jury because it failed to meet the standard for conditional relevance. Thus, there would be no evidence and then an acquittal would follow.

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[–]danpilon 6 points7 points8 points 16 years ago* (6 children) | Copy Link

The point is to not take the accuser's word as 100% truth. Because of the severity of the crime, some people might find it incredibly hard to believe that someone would lie about it. There is often very little other evidence in rape cases than the accuser's word. If all juries took the accuser's testimony as 100% truth, 41% of people sentenced to years in prison for rape would be innocent, assuming your number is correct. I don't, however, see how reporting on the psychological trauma is relevant. Is this accuser psychologically traumatized? If so, how can you measure it? This argument is made to tickle the heartstrings of juries to make them rely on emotions rather than the logic of the case. If this person in court was psychologically traumatized, then prove it.

edit: changed "victim" to "accuser".

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[–]tomek77 2 points3 points4 points 16 years ago* (0 children) | Copy Link

If you want to debate on /MR, you have to learn how to make your points using logical thinking, and without weasel words ("obscure").

I can easily rewrite your comment, by switching the sides, which is a good sign that your comment is little more than empty rhetoric, without substance:

"And what does telling the jury some obscure study found that it is not unusual for victims of sexual assault to delay reporting the assault to law enforcement do? It's basically saying, "she probably was delaying too."

The accuser is going to have a man thrown in jail for 20 years on her word only, a very long time after the alleged incident. What if she was allowed to tell the jury that it is not unusual for victims of sexual assault to delay reporting the assault to law enforcement. Just based off some statistic that is not relevant to this specific case, the jury convicts him. So what, she could do it again?"

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