Ah But Acknowledging it is Not Perfect

Ah but, come the excuses. We do not know, the behavioural scientists will excuse, all that there is to know about identification, deceit, discrimination, attachment or whatever. And there will always be more to learn. We can only, at best, tell the courts, law reformers and parliaments, what is currently known about these and other topics. And we may be proved wrong in the future. And, what is more, many of these topics involve value judgements, policy choices, which are not 'rational', and are beyond science. To take perhaps the most basic example; is 'truth' the objective of our courts? Are our criminal courts designed as the bestknowable means of producing the greatest number of accurate decisions, or at least the fewest erroneous guilty verdicts? Or, in reality, do they have other objectives which impede these goals, such as providing public assurance that justice appears to be being done and satisfying people that the system is 'fair' because it will allow lawyers to fight for you should you be accused of an offence? Is the cost of achieving justice always irrelevant? When we seek to distinguish those people who are capable of making legal decisions, and those who are not, are issues of efficiency, such as a perceived need to get decisions made, irrelevant?

And there is the more classic complaint that, anyway, behavioural scientists cannot really help the courts. The courts wantto know about the particular case. 'Is witness X's identification evidence/confession/opinion reliable?' The expert witness may insist, to the court or to himself or herself, that he or she can only give evidence about witnesses with some similar characteristics. So some psychologists do not like giving expert evidence, because the courts will misuse their evidence, and possibly them. Others do not mind because they are only giving the court general information and leaving it to the judges to apply it in the specific case. But these arguments to do not satisfy. Those who will not give evidence, because the courts will/may misuse it, are nevertheless deciding that it is acceptable for the courts to make a decision without the benefit of their evidence. Either way they are condemned to participating in a likely error by a court. Those who give evidence, but place responsibility on the court for its use, are avoiding responsibility. What would they do, if they were the 'treating' professionals, or otherwise were decision makers with practical consequences (such as to release an offender or suspect), in the specific case? Which way would they decide? And how would they decide? They would draw upon studies of people with similar characteristics. They would do what the court would do, infer to the specific from the general. That is what practitioners are condemned to do. And, being more knowledgeable of the limits of their knowledge and decision-making pitfalls, they may do it better than the courts.

And even if there is a good excuse for reluctance to give the courts expert evidence— for example, concern about the experience of being questioned in court—there are none for failure to inform law commissions, and other law reform organisations, as well as legislatures, about the best, current, behavioural science. Indeed it is professionally perverse, given the concerns expressed about inferring from general knowledge to specific cases, for the modal contribution of psychology to law to be via the giving of expert testimony in individual trials. Those concerns do not exist when the issues are what should the general legal tests, law, be?

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