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unit 1 CR 1.2.docx

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Department
Psychology
Course
PSYC 3020
Professor
Dan Yarmey
Semester
Winter

Description
Unit 1 – Course Reader 1.2 Forensic Psychological Testimony: Is the Courtroom Door Now Locked and Barred? Abstract  Since 1993 (R v. Marquard) It has become increasingly more difficult for lawyers to have proposed psychological testimony admitted into evidence at trial  The author reviews several recent cases and shows how courts are applying legal rules of admissibility in cases where expert psychological evidence is being proffered  The testimony of expert witnesses in general, and forensic psychologists in particular is disappearing from Canadian criminal trials  Trial judges in Ontario are declaring the testimony of psychologists inadmissible  Reduction of admissible forensic psychological testimony has been a result of a series of decisions from the Supreme Court of Canada (SCC) and Ontario Court of Appeal (OCA) in the last 6 years R v. Marquard (1993)  Court ruled that expert witnesses couldn’t comment on the credibility of a witness  A young girl severely burnt her face while in the care of her grandmother (Marquard); at first she said it happened when she tried to light a cigarette and then later confessed to her grandmother burning her face intentionally on the stove; sentenced to 5 years but appealed through OCA and was knocked down to 2 years; further appealed to SCC which ordered a new trial due to the expert testimony—doctor from Suspected Child Abuse Clinic testified in her opinion that the girl lied when she said she burnt herself with a cigarette; the SCC judge felt it was inappropriate for this doctor to have commented on the truthfulness of the child Regina v. Mohan (1994)  Dr. Mohan was a pediatrician who was charged with 4 counts of sexual assault of 4 female patients (inappropriate fondling of breasts, vaginal penetration and stimulation, and intrusive questioning about sexual activities); defence counsel sought to call a psychiatrist who would testify that the accused would not fall within the narrow class of unusual individuals who would fit this crime; the trial judge said this evidence was inadmissible and Dr. Mohan was convicted; appealed to OCA and allowed a new trial based on the grounds that the OCA judge felt the trail judge erred in not permitting the jury to hear the expert evidence; the SCC then overturned OCA ruling  Mr. Justice Sopinka wrote the decision in the SCC which significantly changed the law on admissibility of all expert testimony; testimony could only be admissible if it met the following criteria (i.e. Mohan test): o Relevance – evidence has to be logically relevant to the inquiry; the delivery of evidence must not be prejudice bc there is the danger that it will be misused and will distort the fact-finding process o Necessity of assisting the trier of fact – expert opinions are admissible if they provide scientific information that the judge and jury aren’t knowledgeable about; if on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary o The absence of any exclusionary rule – the evidence would otherwise be admissible pursuant to the laws of evidence o The expert must be properly qualified R v. McIntosh and McCarthy (1997)  Third decision that affected the admissibility of psychological testimony involving studies in eyewitness identification  Owen McIntosh and Paul McCarthy had been charged with attempted murder/robbery/ firearms offences; charges arose from a robbery in a dry cleaning store during which a shooting occurred; both accused fled the store and were not arrested for 3 months; at trial, there was some circumstantial evidence to link both accused to the scene of the crime and the escape vehicle; the defence sought to call expert evidence on eye-witnes identification; called Dr. Yarmey to testify but his evidence was deemed inadmissible both at trial and on appeal
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