Running Head: JURY COMPREHENSION OF EXPERT WITNESS TESTIMONY Jury comprehension of expert witness testimony: a case of multiple variables?

Running Head: JURY COMPREHENSION OF EXPERT WITNESS TESTIMONY

Jury comprehension of expert witness testimony: a case of multiple variables?

Carmel Brown

Submitted to the Faculty of Arts

Charles Sturt University

in partial fulfilment of the

requirements for the degree of the Post-graduate Diploma of Psychology

Date: 30 September, 2011.

JUROR COMPREHENSION OF EXPERT WITNESS TESTIMONY 1

The work contained in the report is the candidate's own work and that it has not been

submitted for any degree at any other university.

Name: Carmel Brown

Signed: ____________________


Abstract

Jury comprehension research appears to have divided attention between processes of

comprehension of content and the influence of heuristics. Drawing on observation of

sessions of two trials; transcripts of the trials and of interviews with three jurors, two judges,

three counsel, and one expert witness from each trial, this study identified influences on juror

comprehension of expert witness testimony. The coherence-connectionist model of

comprehension informed identification of variables. Variables were thematically categorised:

courtroom techniques and strategies, status of expert witnesses, features of testimony, and

social geography of the courtroom. The thematic breadth was supported by pragmatic

psychology in terms of encompassing multiple levels of analysis - individual to systemic.

Although one of the limitations of the study was that it did not examine comprehension

processes directly with jurors, implications emerged for trial preparation of jurors, the

pedagogical role of trial judges, the communication modes used by expert witnesses, and the

conduct of examination by counsel.


Jury comprehension of expert witness testimony: a case of multiple variables?

Juries have historically been a significant component of the Anglo-American justice

system, reflecting public administration principles of fairness, impartiality, and community

conscience (O’Brien, Goodman-Delahunty & Pratley, 2008) and common-sense (Finkel,

2000). There appears to be high public regard for trial-by-jury; in England and Wales for

instance, a survey of confidence in justice institutions showed that only the police attracted

higher confidence or performance ratings (Roberts & Hough, 2009). The regard may be

bolstered by the legislative protection of the privacy of jury deliberations, and by the rarity of

the authority of a random group in public life. Despite this respect, in western democracies,

the jury is now used in fewer cases as a proportion of the total (New South Wales Law

Reform Commission, 2008), and reservations about its effectiveness are intermittently

expressed (Keller, 2011; King, 2000). It is thus timely to consider influences on jury

decision-making.

In discharging their duty, jurors are asked to be cognisant of information from various

parties; to decide what evidence to accept/endorse from whom, and how much importance to

place on it; and to understand and apply the legal intricacies as mediated by the judge, to

render a verdict (English & Sales, 1997). The importance of the jury’s decision-making for

the accused is obvious. Increasingly in Australian jurisdictions, via legislation, victims have

an important stake in the efficacy of the jury’s decision-making process.

A range of factors has been found to influence jurors’ use of information provided

during a trial. Key among these factors are: the gatekeeper role of judges, in particular

through jury instructions (Brewer, Harvey & Semmler, 2004; Finkel 2000; Schweitzer &

Saks, 2007); jury size (Mukhopadhaya, 2003); demographics of juries (Kaplan & Martin,

1999); content and presentation mode of scientific evidence (Goodman-Delahunty, &

Hewson, 2009); witness credibility (Brodsky, Griffin & Crammer, 2010); “source


characteristics” of the expert (Schuller, Terry & McKimmie, 2005); popular representations

of forensic evidence (Findlay, 2008; Schweitzer & Saks, 2007); and jury deliberations

(Tinsley, 2001; Kaplan & Martin, 1999). There is an applied aspect to much of this research

and an orientation to enhancement of judicial processes. The reach of interest is significant;

in 2008, all Australian jurisdictional Attorneys-General committed to examining

improvements in jury directions (NSW Law Reform Commission, 2008).

Expert evidence

The importance of scientific evidence arrived on centre stage in Daubert v. Merrell

Dow Pharmaceuticals, Inc. (1993), which determined standards for admission of reliability of

scientific evidence in the United States, but which also drew international attention to the

grounds of authority of scientific evidence (McMullan, 1999). Repeated findings show that

jurors’ decisions are influenced by science and by expert witness testimony (Brodsky,

Griffin, & Cramer, 2010; Karpadis, 2010). Alongside the ubiquitous use of scientific expert

evidence in criminal and in some jurisdictions, civil cases, (Hans, Kaye, Dann, Farley &

Alberstin, 2011; Schuller, Terry & McKimmie, 2005), has been popular culture’s portrayal of

forensic science in criminal cases. A consequence of the “CSI effect” may be that members

of the public expect scientific evidence to be more readily available and to have a decisive

influence in deliberations (Holmgren & Fordham, 2011; Schweitzer & Saks, 2007). An

Australian study examined the correlation of convictions and use of DNA evidence and found

that convictions were 23 per cent higher in homicide and 33 per cent higher in sexual assault

cases (Briody, 2004).

The dynamics of influence of expert witness testimony are not clear cut, and variables

can be broadly summed up as content and perceptions of experts. Attractiveness and gender

variables have been found to interact to produce varied outcomes on jurors’ perceptions of

expert evidence (Brodsky, Neal, Cramer, & Ziemke, 2009; Schuller, Terry & McKimmie,


2005). Interestingly, experts themselves and jurors may differ on what matters. A series of

studies which also included a survey of lawyers and expert witnesses, found that while jurors

were expected to be more influenced by personal aspects; few jurors reported being

influenced by an expert’s pleasant personality or physical appearance, rather, they gave

import to the expert’s ability to convey technical information non-technically, their perceived

willingness to provide firm conclusions, and the expert’s reputation and educational

credentials (Shuman, Whitaker & Champagne, 1994, 1996a, 1996b). Despite the intriguing

results, Ivković and Hans (2003) noted that the response rates in these studies were generally

low.

When confronted with complex testimony, jurors shifted from central processing,

which involved careful critical analysis of the content and quality of the evidence, toward

peripheral processing, in which jurors relied on shortcuts and heuristics (Levett & Kovera,

2008;Schuller, Terry & McKimmie, 2005). Mock jurors may have centrally processed

testimony but rejected it on grounds of suspicion of the expert’s motives, for example, that

the testimony was deliberately confusing (Vidmar & Diamond, 2001, as cited in Ivković &

Hans, 2003). Three mock jury experiments reported a significant but intricate interaction

between complexity, remuneration and the credibility of testimony (Cooper & Neuhaus,

2000). When the expert testimony was simpler, remuneration did not make a difference to

trustworthiness; when testimony was complex, the most highly remunerated experts were

rated as least trustworthy. The use of heuristic shortcuts may vary with subject matter.

Jurors may respond quite differently to expert psychological claims about human behaviour,

about which they feel a certain level of competency, than to medical or financial testimony

(Shuman, Champagne & Whitaker, 1996, as cited in Ivković & Hans, 2003).


Comprehension of expert evidence

Interestingly, DNA-scientific evidence may equally create confusion as much as

provide an expectation of assurance (Findlay & Grix, 2003). In surveys with jurors from

seven trials, (with a response rate range per trial of 70 to 100 per cent) in which forensic

evidence including DNA was used, members of juries that convicted, rated DNA evidence

more significant in their deliberations than those which acquitted. In the same research, some

jurors (unquantified) expressed difficulty in understanding DNA expert evidence but

concurred on its importance and were in juries which convicted (Findlay, 2008). While mock

trial research on the use of mitochondrial DNA evidence found that most jurors cope with the

challenge of comprehending scientific evidence, the relevant study showed differences in

comprehension levels which were associated with educational attainment levels, (particularly

with regard to science and mathematics), reservations about science, and concerns about

contamination of mtDNA evidence (Hans, Kaye, Dann, Farley & Alberstin, 2011).

The storytelling model has been shown to explain juror comprehension of testimony

(Pennington & Hastie, 1992; English & Sales, 1997). The model is based on three

experiments with psychology students (Pennington & Hastie, 1992). The experiments asked

participants to render hypothetical verdict decisions based on combinations of case

summaries, court transcripts of witness testimonies, variability of the order of testimony, and

supplementary information. The case involved a murder charge that hinged on the

determination of the defendant’s mental state. Findings demonstrated that participants’

decisions were aligned with the overwhelming weight of evidence when it was organised by

story than by legal issues, and in such circumstances, the level of confidence in the decisions

was higher. The results were not accounted for by differential evidential memory. Further to

this, providing explicit story inferences shifted verdict decisions towards the more complete

story option and influenced the impact of credibility information (for example, an


inconsistent witness) on decisions. A corollary of the model is that evidence which itself is

presented as anecdotes influences jurors’ verdicts (Bornstein, 2004).

Cognition and comprehension

The story-telling model is consistent with the model of comprehension whereby

information is serially processed and unconscious story grammars provide learners with a

structural framework within which to organise the information (Galotti, 2008). Individuals

attend to, comprehend and recall information through framing it with familiar explanatory

schemas which give meaning.

Connectionist networking or parallel-distributed processing is posited as an

alternative explanation to the serial processing approach to comprehension. New information

is perceived through connective patterns generated by the intersections of triggered or

activated pathways that spark in the brain - many at the same time (Sternberg & Ben-Zeev,

2001). Bonds are forged with like elements to form and re-form perceptions. In evidence that

used the concept of friction, for example, as the point for ‘friction’ becomes active, so may

points for ‘tyre’, ‘road’, and ‘surface’ but presumably not the point for ‘flower’.

An advantage of the connectionist networking approach is that it allows several

conditions to be met at the same time and patterns or similarities to be recognised (Galotti,

2008). Expanding on the connectionist model, and broadening the findings of the story model

research, a US internet-based study of decision-making with four participant groups using a

factually complex legal case, drew on Gestalt psychology to conclude that decisions were the

outcome of connectionist processing but that it was a process which was driven by coherence

(Simon, Snow & Read, 2004). In other words, friction is more than the sum of the separate

meanings of each activated word. Comprehension is used with reference to understanding,

not just processing of items of information. Further to this, given that the interactions are

triggered by the existing neuronal patterns in an individual’s brain, the representations of


background knowledge in an individual influences the perception-building process. The

interaction of background and information is grounded (Simon, Snow & Read, 2004). In the

connectionist-coherence paradigm, coherence operates as a resolution of the serialist and the

connectivist dichotomy.

Attention theory has demonstrated that the content of what is comprehended is also

influenced by form (Laeng, Lag & Brennan, 2006). The form of content was considered in a

US mock trial study with 480 jury-eligible participants that focussed on the effect of the use

of different learning aids and presentations on comprehension test levels. Results

demonstrated that comprehension of complex evidence was not just of the content per se but

how it was mediated by presentation (Dann, Hans, & Kaye, 2007). While overall there were

no significant differences between the comprehension with or without innovations, the post-

deliberation comprehension scores on two aspects of a test showed that those who used an

mtDNA checklist (with questions to guide) or a juror notebook containing slides, overheads,

charts, outperformed jurors who did not use them. There was also evidence that use of

multiple aids improved juror comprehension – the combination of a juror notebook and

mtDNA checklist suggesting that the achieved level could have been a result of the pairings.

In a separate study, 234 general community mock jurors achieved the same level of

understanding of the concept of self-defence as law students when using a computer

animation and flow chart but not using audio only (Brewer, Harvey, & Semmler, 2004).

Reservations about the emotional and persuasive influence of still photographic

images and illustrative aids persist (Bright & Goodman-Delahunty, 2004). However,

Feigenson and Spiesel (2009), suggests that implicit processing is as pertinent a consideration

in other standard forms of legal presentation, such as analogies, and presumably the tone and

cadence of voice.


Presentation modes and comprehension

The effect of learning style and presentation modes (with varying levels of multimedia

support) on comprehension of scientific evidence was tested in an Australian study which

used a simulated homicide trial containing a cognitively-sequenced generic tutorial on DNA

profiling and random match probability (Goodman-Delahunty & Hewson, 2009). The

tutorial involved single expert evidence presented in several forms: verbal only, verbal with

partial multimedia (on DNA only), and verbal with full multimedia (on DNA and the random

match probability). The DNA information was presented in sequential steps. The tutorial

was shown to 470 Australian jury-eligible citizens with the aim of identifying factors that

improve jurors’ understanding of evidence that links a suspect to a crime. Pre-trial and post-

trial knowledge about DNA and the meaning of a random match was measured using

multiple-choice questions. The relationship between DNA knowledge and verdict was also

examined. A quasi-randomised, between-subjects factorial design found that irrespective of

the mode of presentation the expert tutorial significantly improved DNA knowledge. DNA

knowledge increased from 24 per cent to 59 per cent following exposure to DNA expert

testimony. Of particular significance, the tutorial improved the decision-making of

participants whose comprehension of the evidence was most vulnerable – as measured by

verdict alignment with those with accurate understanding of the evidence. The use of

multimedia was effective with those whose comprehension was lowest and the gain in

knowledge was most marked for the more concrete items. The tutorial was less effective in

increasing knowledge of the significance of a random match – the report noted that this may

be attributed to the tutorial’s greater emphasis on DNA profiling.

The multimedia study expanded the grounds of jury comprehension research by

explicitly integrating learning style measures with learning conditions, content and test of

outcomes. The approach used in the virtual mock trial study is consistent with learning


theory premised on the notion that cognitive load is reduced by spreading the cognitive

weight among separate subsystems – in this case visual and audio text. Using the modal

types, the tutorial mock trial expert evidence presented DNA and random match information

step-by-step to facilitate serial learning. However, if learners (jurors) use connectionist-

coherence processes to assimilate new information, it follows that serial sequencing of

information will have a varied impact on comprehension levels of individuals, irrespective of

the mode of presentation. In addition, the DNA tutorial content and presentation does not

account for background content which according to the connectionist-coherence approach, is

implicated in the process of comprehension of the DNA matters. Background content may

include court procedures and protocols and techniques used by trial parties.

Jury comprehension research appears to have divided attention between comprehension

of content and the influence of heuristics, some factors which have been found to interact –

such as gender and status of the expert testimony (Schuller, Terry & McKimmie, 2005). As

far as can be ascertained, there has been little research that links the dynamics of

comprehension with the range of heuristics and contextual influences. Preliminary

observations of jury trials identified a set of factors for consideration: the examination

strategies of counsel, the status of expert witnesses, the geography of the trial courtroom, and

the judge’s communications may each impact on the process of comprehension of expert

witness evidence by jurors. The aim of this study was to identify the range of such factors,

and to consider the implications for expert witness presentation. The ultimate aim was to

contribute to the understanding and improvement of mechanisms to optimise juror

comprehension and use of expert evidence.


Method

The methodology employed in this study was based on pragmatic psychology

(Fishman, 1999) and the concepts of dynamic objectivity (Fox Keller, 1985) and

intersubjectivity (Benjamin, 1985, 2004).

Pragmatic psychology provides a way through the tension between the methodology of

positivist psychology and social constructionism (Fishman, 1999). Positivist psychology’s

emphasis on generating objective, generalizable knowledge through experimental hypotheses

testing has historically been in opposition to the knowledge-in-context of social

constructionism – which Fishman uses as a generic reference to hermeneutics, qualitative

research, social construction, and cultural criticism. There is a theoretical link of pragmatic

psychology with living systems theory, thus the notion of reciprocally causal interactions

among and between elements (Fishman, 1999). Paying allocentric attention to what is being

studied in all its complexity, including the detail of the elements and their interaction, has

been described as “dynamic objectivity” (Fox Keller, 1985). Paradoxically, such attention to

other requires a sense of self-sufficiency so that the subject of study can be distinguished

from one’s own needs and desires (Fox Keller, 1985). This does not mean that the self is

disassociated from the study, rather, it is intricately connected.

The concept of dynamic objectivity is informed by object relations theory, and is

further advanced by the notion of “intersubjectivity”, whereby the self is able to manage the

tension between connection and separation (Benjamin, 1985, 2004). The concepts of

intersubjectivity and dynamic objectivity provide an alternative to the separation of

objectivity and subjectivity - which the concept of reflexivity has also attempted to resolve

(for example, Parker, 1994). A key difference between reflexivity and intersubjectivity and

dynamic objectivity is the focus of the latter combination on the tension between, rather than

the resolution of, objectivity and subjectivity. One of the implications for research is that the


subjectivity of the researcher is not separately specified. In the current study, it is more

appropriate for instance, to look to the researcher’s management of the movement between

observation, interview data and the themes of literature.

Research based on dynamic objectivity is able to encompass multiple facets of the

subject under study. This approach is supported by pragmatic psychology which is

sufficiently agile to enable the various levels of analysis – from the singular to systemic, and

can incorporate emergent themes derived from the successive stages of research. Pragmatic

psychology is also aimed at effective applications or outcomes (Fishman, 1999).

Design

This study was undertaken in conjunction with an Australian Research Council

(ARC) project examining the use of expert evidence in criminal trials. The research method

used was observation supplemented by trial data. The criteria of selection of a trial for this

study were: that it was open to the public and could be observed, that the use of expert

evidence in such trials was not atypical, and that it was a designated trial in the ARC project.

The two trials for observation pertained to culpable and dangerous driving, and murder;

however, given the initial breadth of theme the type of alleged crime was not a criterion of

selection.

Observations were undertaken of sessions of the two trials for a total period of seven

days. The observation strategy was selected to provide a distance from the subjects of study

in a heightened environment (Waddington, 2004). Using an emergent design strategy, the

initial observations of jury-based trials were undertaken concurrently with the literature

search and were used to refine the research agenda. Thus, although the broad parameters of

the project had been defined – as the use made of expert witness testimony by jurors – the

emergent theme became factors affecting juror comprehension.


Prior to commencing observations, public information for jurors was accessed from

the Victorian courts’ website for the purpose of familiarisation with requirements of jurors

and the courtroom setting and protocol. This information was confirmed by observation

during an initial period of customisation to the physical setting and procedures. The

observations were undertaken by attendance at the court proceedings. The main observations

were of four expert witnesses, all of which were contested. Observations were also

undertaken of defence counsel’s summary (one trial), a judge’s closing instructions (one

trial), and discussion hearings (without the jury). Limited conversation with instructing

counsel and court staff was undertaken in the course of one trial for procedural clarification.

Field notes were the principal source of data recording. The initial note-taking was

focused on verbal, para-verbal and nonverbal language, credentials of expert witnesses,

examples of examination and cross-examination of testimony, court processes, uses of audio-

visual aids and communication techniques by the expert witness. Observation and note-

taking were broadened to include counsel’s questioning techniques and logic, non-verbal

communications, the judge’s interventions and directions, and acoustics and spatial

geography of the courtroom.

Materials

For data enrichment purposes, note taking was supplemented by completion of a

checklist to record observations of each expert witness in terms of demeanour and credibility.

The scale used for this purpose was the Witness Credibility Scale (Brodsky, Griffin &

Cramer, 2010), a 20-item measure using a 10-point Likert response option: from one (not at

all confident/strongly disagree) to 10 (confident/strongly agree). The items pertain to four

sub-scales: likeability, trustworthiness, confidence and knowledgeability. The reliability of

the Witness Credibility Scale has been reported (Cronbach α=.95), and the four factors


showed consistently high overall internal consistency in credibility scores (.91 to .98)

(Brodsky, Griffin & Cramer, 2010).

Trial data in this study refers to transcripts of the two observed trials and of audio-

recorded structured interviews with parties. Trial data were accessed within the scope of the

government and university approved methodology. The structured interviews comprised 30

questions about expert evidence: the expert’s presentation, judge’s instructions pertaining to

the expert testimony, jury deliberations and cross-examination. For Trial 1, transcripts were

available for interviews with the trial judge, crown prosecutor, one expert witness and three

jurors. For Trial 2, transcripts were available of interviews with the trial judge, crown

prosecutor, defence counsel and one expert witness. Transcripts became available following

the identification of the initial emergent themes and were examined for evidence of factors

already identified. The transcripts were thus a source of testing, validation and refinement of

themes.

The transcripts of the trial and the interviews have not been submitted with the report

of this study. This is due to the approved ethical requirements of the associated ARC project,

which specified that participants' confidentiality be protected. In addition to academic ethical

requirements, the confidentiality obligations in this project were consequential to the

provisions of jurisdictional legislation pertaining to the protection of jury deliberations.

Interview participants and researchers were provided with privacy and ethics protocol and

signed a confidentiality agreement.

Results

The trials

Trial 1 was conducted on the basis that although the accused did not remember what

he had done, he accepted that through his own actions he was the person responsible for the

victim’s death. The defence contended on the accused’s behalf that he was mentally


impaired at the time of the offence. Thus, there were two verdicts open to the court: guilty of

murder, or not guilty of murder because of mental impairment. The case turned on the

contesting expert opinion of the mental state of the accused at the time of his actions in

causing the death of the victim, in accordance with the provisions of the Victorian Crimes

(Mental Impairment and Unfitness to be Tried) Act, 1997. The defence had to prove on a

balance of probabilities that the accused was mentally impaired at the time of the crime.

While three psychiatrists testified that the accused was in a depressive state at the time

of the offence, one expert testified that he had exhibited characteristics of a “dissociative

state” at the “severe end of a major depressive disorder” and that the act of the accused was

not conscious, voluntary and deliberate, or intentional and therefore he was mentally

impaired (Victoria Case 1, 2011). After five days of deliberation, the jury rejected the mental

impairment defence and declared the accused guilty of murder.

Trial 2 was conducted on the basis that the accused had, through culpable driving,

caused a death. If the jury found the accused not guilty of culpable driving, they had to then

consider whether he was guilty of dangerous driving causing death, an alternative count

under the Victorian Crimes Act 1958. The issues were whether the accused had driven in a

manner which was grossly negligent and that such driving caused the death, and if not,

whether there was evidence of speed or a manner of driving which was dangerous to the

public and had caused death.

The two expert witnesses in trial 2 provided testimony with regard to the impact

damage on the car, trail of debris and shape of the curved movement of the car. The case

turned on methods used to determine the impact damage and length of the curve. After more

than six hours of deliberation, the jury found the accused not guilty of culpable driving but

guilty of dangerous driving causing death.


Themes of analysis

Themes of analysis were derived from observations and transcripts of interviews and

trials and progressively refined as per the outlined methodology. Results and discussion were

integrated and are presented in thematic summaries. The themes were identified as:

courtroom logic and techniques, status of expert witnesses, features of testimony, and social

geography of the courtroom. Sub-themes were generated for each of the major themes.

Courtroom logic and techniques. The sub-themes are: range of demands on juror

comprehension, and the pathway of evidence.

Range of demands. Jurors were provided with legal parameters for their use of

expert evidence. As is standard practice, at the commencement and conclusion of both trials,

judges outlined the duties of the jury focussing on the relevant provisions and applications of

the law. During the trial, judges made decisions about the admissibility of certain expert

evidence - which has been shown to be especially influential (Brewer, Harvey & Semmler,

2004; Finkel 2000; Schweitzer & Saks, 2007).

Juror comprehension not only involved absorbing block content. Jurors had to

understand pieces of information, follow lines of question, identify the logic of the building

of the case, interpret verbal and non-verbal communication and legal strategies, and integrate

legal information pertaining to the charges and trial procedures. Other tasks include being

asked by one judge and counsel to be aware of their subjectivities - and to set them aside.

Observed techniques used by counsel in examination of expert witness testimony were:

questioning to elicit particular segments of evidence, challenge of fact by disputation or by

presentation of new or alternative facts, reference to precedents – directly or indirectly related

to witness, use of analogies and definitions to illustrate features. Although a mix of inductive

and deductive reasoning was employed by counsel, the dominant strategy appeared to be one

of sequencing of units of information to construct a main point. Units of information were


tangentially expanded to sub-units of analysis. The following summary of one piece of

expert witness testimony led by the prosecution in trial 2, traces the apparent rationale and

pathway of the examination.

Pathway of evidence. An expert in accident reconstruction provided evidence over a

three-day period. In the first session of that evidence, an initial description of the observed

accident scene and of subsequent actions concluded with a focus on the observable status of

brake lights - as an indication of driver action at impact. The testimony then moved to the

state of the nearby nature strip and a focus on gouging marks, followed by the placement of

witches’ hats (cones) and the relevant measurements taken. When asked whether he had

taken measurements in relation to the cones, the expert witness used this question to

anticipate another stage in evidence, and provided the jury with a present and a pending

context for the particular measurements:

… Now we're kind of getting to why I did. The reason for taking the measurements

that I took, which I'll get to, was that my assessment on the night - and hasn't changed

- is that this particular tyre mark was a yaw mark. It followed a curved path. I'll

come to that maybe a bit later, but once an assessment is made that either a tyre mark

is a yaw mark or a skid mark, you take a different set of measurements depending on

which type of tyre mark you're dealing with (Victoria Case 2, Expert 1, 2011).

The next stage of examination used a mixture of inductive and deductive reasoning to provide

intricate depictions of the principles of a vehicle travelling in yaw and the methods and

calculations used to derive speed based on this assumption. Examination tangentially shifted

to definitions or references to general features that were then applied to an element.

Following the description of the elements and its implications for calculation, the expert

witness informed the jury that all the elements which had been outlined were inputs for the

formula for calculating speed from yaw – another contextual reference, although a


retrospective one. Further testimony referred to calculations and significance of tyre marks.

The expert then provided a composite opinion of what had occurred in the form of a summary

statement and an animation. This particular expert evidence was not without challenge, and

cross-examination re-focused on the status of the measurements that underpinned the

subsequent scale plan and animation.

Contextualising of evidence in terms of its overall purpose was not typical of expert

testimony in either trial; instead, evidence was largely developed by sequenced units of

information, the purpose of which became apparent over time. This is a systemic feature of

criminal trials. There are strategic reasons on the part of counsel for not advancing the

underlying rationale and purpose of a particular argument, in particular, that the witness may

unwittingly provide material. However, the implications of this practice were captured in a

New Zealand study based on 312 juror interviews (with a response average of 6.5 jurors or

54.3 per cent per trial), which found that jurors sometimes lacked a framework to assess the

weight of particular evidence or cross examination (Tinsley, 2001). The need to

contextualise may also account for the following comments from a juror in one of the present

study trials:

[Name of expert witness] was easier to understand, although by the end of his time too,

I think we discussed that okay he was very good at breaking it down and using

examples so us lay people could understand but in the end it got a little bit too many

examples and we’re steering off the track a little bit… (Victoria Case 1, Juror 2, 2011).

One trial judge provided advice to jurors on the logic of the examination of evidence, namely,

that the information was establishing the grounds for evidence, the meaning of which would

be later revealed:

… [I]t's very important not to make any decisions until you hear all the evidence. What

you're hearing really here - I might be quite wrong but, it seems to me, by way of


preparation for base material for which someone is going to talk about what it may or

may not mean. Of course, to accept that, you've got to accept the base material. So

that's what they're talking about it seems (Victoria Case 2, Trial Judge, 2011).

Comprehension based on unitised input is conducive to a sequential rather than global

learning style – the latter being the paired opposite of sequential on the Index of Learning

Styles (Felder & Soloman, 2001). The Index is a questionnaire based measure of self-

reported learning styles on four dimensions: processing (active vs reflective), perception

(sensing vs intuitive), input (visual vs verbal), and understanding (sequential vs global)

(Felder & Soloman, 2001; Felder & Spurlin, 2005). A corollary of the index is that sequential

information suits some individuals more than others.

According to the connectionist-coherence model of assimilation of new information,

jurors’ comprehension tends towards coherence, as per the story explanation. Neural

connections are formed and reformed and an integrative story either shifts or is reinforced,

with implications for verdict outcomes. When information is presented in a piecemeal form,

and with unfamiliar protocols and procedures, presumably, story explanations are less

predictable, more malleable and varied within and between individual jurors.

Trial judges demonstrated a pedagogical role in relation to the jury. In addition to

providing instruction on the law, judges made clarifications of content and process during

expert witness testimony. The clarifications included remarks on particular features of

evidence, for example, “do you [the jury] see how it's drawn; and what I asked the witness

was about that” (Victoria Trial 2, 2011). It also included suggestions at modification of

technical language to be more in keeping with everyday usage: “…you [expert witness]

might just make that a bit clearer just so the jury understand it, perhaps rather than use what

we know is the near - just right and left” (Victoria Trial 2). The same judge also sought


confirmation of information, thus: “do you mean that if you look at the plan, if the car is 1.8,

the intrusion is only .3?” (Victoria Trial 2).

The transcript of the interview shows that when asked if he takes any steps to assist

the jury to understand the expert evidence, one judge confirmed that he did: “Yes, I think you

have to take steps, because counsel often aren't clear about it. So the normal steps that a

judge has to take to make sure the appropriate questions are asked, and material presented”

(Victoria Case 2, Trial Judge, 2011).

Status of expert witnesses. The sub-themes of status of expert witnesses are legal

status and authority, credentials and demeanour of expert witnesses.

Legal status and authority. Each judge instructed the jury about the legal authority

of the expert witness, namely that an expert witness is permitted to provide opinion and that

the role is generated by relevant credentials. The distinction between expert and witness was

also later referred to in trial 2 with regard to the status of particular evidence:

Perhaps we should just clarify one thing. Though you asked this witness his opinion

as to speed, you don't call him as an expert as to speed. So, the only opinion he's

given is really opinion that the jury would have in the sense that they'll have to look at

that and glean from the collision whatever they, in the end, glean. But this witness is

not called by you as an expert as to the effects of speed (Victoria Trial 2, 2011).

One judge, in interview, contrasted opposing expert witnesses’ knowledge about the relevant

law - the one, with direct everyday involvement in a forensic setting; the other, having an

interest in the relevant area as part of his general practice. This is consistent with the

following exchange between the judge and an expert witness:

WITNESS: … but I try to do both because I like to keep a balance between clinical

work and doing reports and criminal work.

HIS HONOUR Don't we all?


HIS HONOUR: Some people do both.

COUNSEL: Yes. Now - - -

HIS HONOUR: Those who do both are generally more helpful, that's all, as a general

observation (Victoria Trial 1, 2011).

Credentials. Credentials and experience were used to demonstrate or cast doubt on

the status and capability of an expert witness and the authority of their testimony and to

compare and rank witnesses. The detailed credentials of each expert witness were presented

to the court in the introduction of each witness and were a point of reference during their

testimony and that of other witnesses in each trial. Credentials included academic

qualifications, publications, membership of professional associations, relevant experience

including as an expert witness. The selection and form of presentation of credentials of a

particular expert witness in one trial was a subject of one 30-minute plus trial discussion

(without jury). The subsequent presentation to the court was noted by one juror:

… he certainly has the academic qualifications for his position but I wonder whether

that was too much emphasised because they spent ten or 15 minutes reading out his

qualifications… (Victoria Case 1, Juror 3, 2011).

In trial 1, with jury in attendance, the judge sought confirmation of curriculum vitae details of

one expert witness, specifically, the scale of professional services said to be provided.

Observed techniques by counsel which may have had a bearing on the authority and

credentials of an expert were: confusion or mistakes in names of either the expert witness or

referential source, creation of doubt with regard to chronology and methods of data

collection, and citation of previous testimony prior to a suggestion (by question) that a

previously considered factor had been omitted from a report (trial 2). Findlay (2008), posits

that cross-examination of an expert witness is usually designed to challenge or impugn the


expert’s credibility and explanation, which is the very basis of why they are in court, but that

this can complicate juror understanding.

In his summary address to the jury, the trial 2 defence counsel deemed and inferred

vocational ranking of opposing expert witnesses by referring to the prosecution expert as a

“calculator” and to the defence expert as a “scientist” (Victoria Trial 2, 2011). Also in trial 2,

a distinction was made and relative status inferred between respective civil and mechanical

engineering qualifications of expert witnesses. In another instance, seniority was the issue:

COUNSEL: You know [trial expert witness]?---Yes

COUNSEL: He's not as senior or as experienced as [known authority]?---I would say

that's probably true, yes (Victoria Trial 2, 2011).

In trial 1, the length of years of training was self-referenced by an expert witness in

conjunction with his proffered clinical diagnosis. However, a juror declared that:

… [S]ometimes what’s on paper means jack-shit. If you haven’t done it and been out

in the field then that means jack-shit so I took note of that and was just as impressed

with [expert witness 2] and [expert witness 3] as I was with [expert witness 1] despite

all his credentials (Victoria Case 1, Juror 2, 2011).

Interviews supported the importance of applied experience. One counsel projected

that practice had been more significant than theory (and a more academic background) in

terms of effectiveness of explanation of concepts to a jury. Relevant experience was

regarded differently by the defence expert of the second trial, who nominated a gap in

specialist professional knowledge in the prosecution expert witness and in the employing

organisation. Thus:

… [H]e’s a civil engineer but we’re talking about vehicle dynamics in this case where

he hasn’t done; he should if he is going to claim an expertise in something, he should

have written a publication and had it published. I really don’t think [the organisation]


have the right training skills sets and background to maintain the expert evidence that

they’re relying on (Victoria Case 2, Expert 1, 2011).

Demeanour. The perspectives on relevance of academic and applied experience

flowed into commentary about style and demeanour of expert witnesses, including the ability

to communicate scientific concepts to the jury. Demeanour was judged as being able to

defend one’s position and was used by defence counsel in a summing up reference to being

adamant.

One juror noted that an expert witness had observed the testimony of another expert

and speculated this may have helped him “to handle himself a bit better” (Victoria Case 1,

Juror 2, 2011). Another juror remarked that his testimony “was a little bit over the top”; and

on the other expert: “Oh yeah, his demeanour I think was very good. He came across as

reasonably relaxed, knew what he was talking about and listened to the questions and tried to

answer them” (Victoria Case 1, Juror 3, 2011).

The scores and means of the sub-scales of the Witness Credibility Scale for each

expert witness, undertaken for data enrichment purposes, are shown in table 1.

Table 1

Means and Standard Deviations of Witness Credibility Scale Sub-scales for Expert Witnesses

Expert witness Likeable Trustworthy Confident Knowledgeable

A 9.4 (0.5) 9.4 (0.5) 9.6 (0.49) 9.8 (0.4)

B 9.4 (0.49) 10(0.00) 10(0.00) 10(0.00)

C 9.4 (0.50) 10(0.00) 10(0.00) 10(0.00)

D 9.4 (0.5) 9.4 (0.5) 9.0 (1.26) 10(0.00)

N = 4


Results indicate a high mean response for each expert witness for each category.

Interestingly, three of the four witnesses had the highest possible mean for the

knowledgeability sub-scale; and confidence was the most variable sub-scale. The lowest

mean result on the confidence measure was that of a witness whose credentials had been a

subject of challenging examination by the opposing counsel. However, as previously noted,

credentials of themselves were less a measure of worth in interview results.

Social geography of the courtroom. The sub-themes are: layout and design,

audibility of evidence.

Layout and design. In trial 2, the judge proffered suggestions about using the given

space to optimise visibility of visual aids. For example:

[To Expert witness] it mightn't hurt if you get - I'm certain that you stand - to the

witness box - yes, the pointer - it might just help us… the jury can't see it unless

you're out of the box (Victoria Trial 2, 2011).

Spatial position also made a potential difference to attention. The jury was seated in

two parallel rows, perpendicular to the prosecution and defence counsel. In each trial, the

mid-range group of jurors would have needed to look past the nearest informing counsel

(seated opposite the relevant barrister) to focus on the expert witness who was positioned on

the other side of the courtroom. In one trial discussion (without jury), the judge directed

informing counsel to cease any non-verbal behaviour which may convey overt responses to

testimony. This followed a verbal report to the court by opposing counsel. This observer had

noted a series of gesticulations: grimaces, raised eyes, smirks and audible sighs on the part of

the counsel during expert witness testimony.

Audibility of evidence. Audibility emerged as an early theme on the common sense

basis that missing or misheard evidence would affect jury comprehension of at least a piece

of evidence. There were occasional missed words and phrases in both trials on the part of


this observer and others. Own observations of audibility problems were confirmed by

examination of trial transcripts.

During the observation period of trial 2, one counsel and an expert witness were asked

by the judge to raise voice volume, and a reference was made to the microphone having to

“pick up” voice (Victoria Case 2, Trial Judge, 2011). One counsel appeared to dramatically

vary volume levels, timbre and cadence - which affected audibility. The trial transcript

shows that two consecutive witnesses were asked by the judge to raise voice volume; and that

the judge advised a third witness to re-position himself for audibility, and to be mindful of

voice volume. There was also a reference to positioning of microphone for the benefit of

court recorders.

In trial 1, there were three occasions when audibility was a source of comment. One

of these was a statement to a witness on day seven that infra-red earphones could be

provided. A juror may miss a fragment of information but complete a thought. However, it

also follows that sufficient missed information triggers misconceptions. An estimate of cost

savings of high quality sound in courts, posited that architecture and acoustics engineering

has an impact on audibility of testimony of courtrooms and more broadly on our “‘subjective’

psycho-acoustic perceptions” (Leembruggan, Louey-Gung, & Douglass, 2006).

Features of testimony. The features of testimony which intersected with expert

witness testimony included: duration of trial proceedings, order and timing of evidence, and

the resources and technologies.

Duration. Trial 1 took place over 19 days, including five days of jury deliberations;

trial 2 - ten days, which included six hours of jury deliberation. Relevant standard

components of the trials included credentials of expert witnesses, summary presentations of

counsel and the judge’s opening and closing statements. The presentation of credentials

varied in duration; one took more than 30 minutes. Other components included counsels’


summary presentations, which in trial 2 were estimated to require between two-and-a-half

and three hours. The charge (closing summary) statement by the judge in the same trial took

more than two hours. For the juror, the final addresses amounted to a (minimum) full day.

The estimated duration of the charge by trial 1 judge was a day. The impact of duration on

concentration was indicated by a juror:

… a couple of times there I tended to drift off a bit in the courtroom and one of the

comments in my notes was ‘will this ever end?’ … It was late in the afternoon and it

just seemed to go on and on (Victoria Case 1, Juror 3, 2011).

Duration alone was one source of reckoning. Another was the form of the explanation and its

relation to duration. This was a source of comment by the same juror (refer above). Thus:

…that’s where I found him [expert witness] a little bit longwinded in some of his

answers, not that there was anything wrong with that or not but it would’ve been nice

if he could’ve said it a little bit shorter. I don’t know whether it’s some sort of

academic thing where maybe he’s a halftime teacher or that sort of attitude, but he

seemed to be trying to expand on everything he was answering (Victoria Case 1, Juror

3, 2011).

In response to a request to briefly explain his use of a particular psychological term, one

expert witness apologised to the jury for answers which are “so long and unwieldy” and for

including a lot of information, but declared that some definitions needed to be provided

(Victorian trial 1, 2011).

Overall demands on jurors were associated with scale, range and unfamiliarity of

input.

…It was too much information. We were getting every day different and some days

we would hear, I don’t know, five or six pieces of evidence and on other days it might

have been just the one, like the defence expert witness that went all day but that’s a lot


of words all day for us to remember and then the judge’s direction as well. We were

out of our comfort zone and thrown into something completely alien to us and it was

hard to remember everything (Victoria Case 1, Juror 2, 2011).

Duration of trials has increased over time. “What used to be a three-day murder trial can now

take many months” (Duggan, 2011, as cited in Keller, 2011). In a New South Wales study,

judges reported that a judicial summary in trials lasting 20 days would be expected to be

more than six hours (New South Wales Law Reform Commission, 2008). The commission

attributes this in part to the increasing complexity of legislation which requires several

grounds to be explained. There is also a view that the detail of instructions is more to do with

survival against future appeal more than at juror comprehension (English & Sales, 1997).

Order and timing of evidence. In trial 1, the defence was directed to lead

examination of the accused because they were required to prove the case for mental

impairment on the balance of probabilities. The expert witnesses for the crown prosecution

immediately followed and were able to hear the testimony of the defence expert witness.

When asked about the effect of the order, counsel commented: “I think that’s easier for the

jury yes, I think they see it in a package” (Victoria Case 1, Trial Judge, 2011). Interviews

with three counsel and one judge demonstrated a consensus on the eventual introduction of

concurrent evidence, whereby experts give their evidence sequentially after having agreed to

a joint statement identifying the matters where they agree and disagree. One prosecution

counsel commented: “Any means by which the parameters of the debate are refined and…

Where the issues are more focused. It would make it easier for the jury” (Victoria Case 2,

Crown Prosecutor, 2011).

As noted by trial counsel, a version of concurrent evidence occurred in trial 2, with

one expert witness being recalled prior to testimony which contested elements of that

evidence. The order and timing of expert witness evidence has been found to reduce


perceptions of guilt and eyewitness believability in experimental conditions when it followed

the eyewitness evidence and preceded the judge’s instructions (Leippe, Eisenstadt, Rauch, &

Seib, 2004).

Resources and technologies. A variety of visual and text-based resources were used

in addition to the main form of expert evidence – oral communication. The range of

resources was broader than predicted by literature. The resources included trial transcript, a

manual or electronic pointer for highlighting a point on a visual display, the document finder

for viewing photos and sketches, and an animation produced by an expert witness. Some

resources were incidental to evidence, such as the use of a pointer; others were presented as a

core feature of evidence, such as an animation. One judge provided a video of his summary.

The key textual aid was the trial transcript. Both juries received a copy of the

transcript. Trial 1 had three copies. Juror interviews in trial 1 outlined that the transcript was

used for checking. In response to a question about what best helped understanding of expert

witness evidence, a juror commented: “… the transcript - by reading back over it again and

making some sense of it and some common sense ourselves” (Victoria Case 1, Juror 2, 2011).

One juror and the trial 1 judge noted and supported a jury suggestion that a document viewer

(with search and find function) be available for jury deliberations.

The document viewer was an incidental visual aid that counsel (and the judge) readily

requested for magnification of photos and for displaying sketches done at the time.

A laser-pointer was also available and used: one judge invited two expert witnesses to use the

pointer. Expert witnesses in trial 2, used or were asked to refer to visual aids in the form of:

simulated and real time photographs of the accident scene, a sketch to demonstrate principles

of and projected movement; and a diagram of striations in skid and yaw marks. One expert

witness presented an animation of a vehicle path leading to an accident. Under cross-


examination, the status of the animation was challenged and confirmed as an illustration of

own calculations rather than a simulation of what had occurred in the accident.

Determination of admissible evidence provided a legal boundary for various forms of

evidence, including visual presentations. In the course of examination, counsel can contest

trustworthiness of visual evidence (Feigeson & Spiesel, 2009). Indirect contestation,

underpinned one counsel’s request for a jury visit to the scene of the vehicle accident:

When you look at it [animations in accident reconstructions], you say yeah well that

looks pretty reasonable except it distorts distances like photos distort distances. And

[t]hen you actually go to the scene which I always insist on with anything like that

because photos give a completely distorted spatial feel about it (Victoria Case 2,

Defence Counsel, 2011).

Further to this:

…But nearly a half of the arc when you looked at the survey data was in fact a

straight line. And once you had that appreciation, and mind when you looked at the

photos you realised there was an optical illusion of a curve because of the angle of the

photograph (Victoria Case 2, Defence Counsel, 2011).

Trial 1 expert witnesses did not use visual aids to assist pathology reports or evidence as to

psychology status of the accused. One expert witness expressed caution about the use of

visual aids:

… The whole trial is conducted using the medium of speech…I think if an expert is

not able to adequately and accurately articulate the issues, visual aids are I think

problematic … because visual aids can be used to misrepresent, to generalise, to

connote an image which suits a particular view which I think has a potential to distort

the evidence (Victoria Case 1, Expert 1, 2011).

However, a trial 2 expert witness was of the opposite view:


… something like that [Power Point presentation] which can help explain some really

simple concepts. It’s almost standard when you’re giving evidence in the US that not

only do you do a report but then you have to do a presentation with it and all of that

goes in as your evidence (Victoria Case 2, Expert 1, 2011).

Conclusion

The aim of the study was to identify the range of factors intersecting with juror

comprehension of expert witness testimony. The ultimate aim was to contribute to the

understanding and improvement of mechanisms to optimise juror comprehension and use of

expert evidence. The identified factors were categorised as themes: courtroom techniques

and strategies, status of expert witnesses, features of testimony, and social geography of the

courtroom. The thematic breadth was supported by pragmatic psychology in terms of the

recognition it gives to macro and micro levels of effect, and its orientation to applications or

outcomes, and by the concepts of dynamic objectivity (Fox-Keller, 1985) and

intersubjectivity (Benjamin, 1985, 2004), which promote independent-but-connected

alertness to the intricacies of the subject under study.

Data collection took the form of trial observations, and access to transcripts of two

jury-based trials and interviews with trial parties. Observations were undertaken of expert

witness testimony, of trial discussions (without the jury) and of trial summaries for seven

days. The observations and review of literature were conducted concurrently - which

sharpened both. Themes were developed and tested against the transcripts of the two

observed trials and of audio-recorded structured interviews with parties.

Limitations

The identified set of variables is not an exhaustive measure of variables which affect

juror comprehension. The dynamics of comprehension and processing of information are

sources of divergent views in research and within the field there is still much to learn about


processes (Gallotti, 2008). This study referred to relevant aspects of the divergence between

serial and connectionist approaches and noted that the coherence-connectionist model

synthesises individual background, neural networking processing and understanding and

coherence. The coherence-connectionist model is also consistent with, but a step forward

from the story model.

Only three jurors from one trial elected to participate in interviews. This smaller than

anticipated proportion of juror interviews placed more reliance than expected on interview

reports of the two trial judges, three counsel, and one expert witness from each trial, and

reduced the evidence base from which to test the themes generated by observations and

literature. Consequently, the results of the study were qualified, and the scope of sources

made explicit where relevant.

A further limitation of the study was that while access to the transcripts of juror

interviews provided evidence of breadth of variables, the interviews were not constructed to

directly examine comprehension processes.

Implications

There are implications of this study for the communication modes used by expert

witnesses and for the education of jurors, the pedagogical role of trial judges, and the conduct

of examination by counsel.

Results, reinforced by the connectionist-coherence model of comprehension, indicate

the worth of a pre-trial briefing to jurors which outlines a provisional schedule of the trial and

court protocols. An introductory outline could provide a conceptual framework for jurors and

include the issues in dispute (Tinsley 2001). In a relevant study, a juror had this to say:

I would think the first day of any case… should be spent giving an overview to say that

there’s going to be this gentleman from the police forensic unit and he’s going to tell

you about the tests he’s conducted… and his presentation is going to be done this


way… you’ll have to make your mind up about that… and you’ll have a forensic

pathologist... Now some people will say, ‘what’s a forensic pathologist?’… So we get

an overview of who we’re going to see and what we can expect from them… The

reason I say that is because people came on and I had no idea . . . why they were there

. . . I said ‘what the heck was that about. Why are we wasting time?’(Fordham, 2006).

An introductory outline for jurors would also enhance engagement of those with a

global learning style. The connectionist-coherence model implies that a global learning style

preference, in contrast to a sequential style preference (Felder & Soloman, 2001; Felder, &

Spurlin, 2005) may be more prevalent than the self-reported index is able to measure.

There is a fundamental systemic challenge to comprehension emanating from the

embedded legal strategies and techniques of presenting and examining evidence, and in this

case, expert witness evidence. The customary logic of building a case can challenge

comprehension. Jurors have to work hard to manage piecemeal evidence and unfolding

information about court protocols and procedures. Given this, it is appropriate to consider

that the use of a flow chart which included the sequence of steps has been found to improve

the understanding of legal instructions (Semmler & Brewer, 2002). Similar charts could be

used to outline the logic of particular pieces of expert evidence.

The logic of the way evidence proceeds is a systemic matter which bears further

consideration, especially given the historical and established jurisdictional upholding of the

difference between the inquisitorial and accusational role of courts, and the associated role of

judges. The latter means that the judge is less authorised to actively seek ‘truth’. In the

present study, the pedagogical role of the judge, evident in trial 2, appeared to operate

between the two conventional roles, confirming and clarifying lines of investigation or

particular information, and advising on use of audio and visual aids (for example, vocal


levels, use of pointer and document finder). Such a role has implications for juror

comprehension and bears further examination on pedagogical grounds.

In one trial, the defence expert witness preceded the prosecution. In the other, an

expert was recalled immediately prior to defence expert witness testimony. The order of

witnesses was not typical, and it is interesting that there was a consensus on concurrent expert

evidence eventually being used in criminal trials – as it is in judge based civil trials in

Victoria.

Given the focus on credentials of expert witnesses in trials, the ambiguity of results

with regard to status is relevant. Most notable was that credentials of themselves did not

deem authority and that the combination of qualifications, applied experience, demeanour

and handling of examination mattered in a configuration of status.

Data showed a variety of uses of visual communication. The use of visual

communication is consistent with learning theory premised on the notion that cognitive load

is reduced by spreading the cognitive weight among separate subsystems – for example,

visual and audio text. Coherence-connectionist theory also posits that attention tends towards

coherence. However, there may be potential points of collision between simultaneous forms

of multi-media information in terms of distraction and attention. This would require further

research.

While interview results showed reservations about the use of digital visual

communication, they also indicated that competent cross-examination is able to contest

trustworthiness of evidence, so the standard court strategies apply. In one trial, counsel’s

cross-examination appeared to reduce the status of the animation – as an application of

calculations rather than a simulation (Feigeson & Spiesel, 2009). The data indicates that

judges, counsel and expert witnesses have capacity to comment on visual features, and that

currently there is scope for advice from parties on the possible cognitive and emotional


effects of visual and multimedia displays (Feigeson and Spiesel, 2009). It is also pertinent

that trial A judge’s view coincided with a juror suggestion that a document viewer (with

search and find function) be available for juries in their referrals to the transcript.

Duration of expert witness testimony is clearly a systemic issue related to the logic of

the trial process. In an age of social media and direct communication, duration becomes

more important as a potential variable of comprehension of testimony. Finally, while the

onus is on trial judges to alert expert witnesses to the need to be audible – as indicated in the

trials of this study, research indicated that audibility and acoustics may be a systemic issue

which warrants further examination.

There is thus a range of potential arenas of research and action aimed at enhancing

comprehension of expert witness testimony. The basis of expert evidence is that it provides

some knowledge that is not routine, or part of everyday knowledge or know-how. However,

the role of the jury is to bring their everyday knowledge and common sense to decide what

counts in the expert evidence provided. A mismatch would only develop if challenges to

comprehension were left unattended.


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Documents

Running Head: JURY COMPREHENSION OF EXPERT WITNESS TESTIMONY Jury comprehension of expert witness testimony: a case of multiple variables?