Browsing by Subject "oikeustiede, prosessi- ja todistusoikeus"

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  • Marjosola, Henna (Helsingin yliopisto, 2021)
    ENGLISH SUMMARY Witness testimonies play a pivotal role in court proceedings, yet empirical psychological research has demonstrated that testimonies can be an unreliable source of evidence. The witness’s own interpretations, experiences and post-event information, amongst other things, can distort the witness’s memory and testimony. In addition, the court process entails various practices that do not support the accurate recall of events and presentation of the testimony. For instance, it is common practice to prepare witnesses for trial behind closed doors without clear guidelines regarding the practice. Witness examination in court, and especially cross-examination, may also include questionable practices. In Finland, the possible impact of these practices on testimony reliability has not been sufficiently acknowledged. Decision-makers have few tools with which to identify and assess the various factors influencing witness testimonies. In their assessment, decision-makers may also rely on unreliable or irrelevant cues. According to psychological research, professional judges apply heuristics and common-sense generalisations in their reasoning, which may cause systematic errors in assessment. This doctoral thesis examines how the different stages of court proceedings should be carried out and developed in order to promote the reliability of witness testimony and its evaluation. These issues are addressed through the following questions: 1) Which practices in the different stages of court proceedings can distort witness testimonies? 2) Which practices in the different stages of court proceedings can distort their evaluation? 3) How should these practices be treated, as a matter of existing law, in order to promote the reliability of testimony and its evaluation? The research uses both practical and theoretical legal dogmatic approaches. In addition, the research utilises psychological research to interpret the law and to observe, assess and develop evidence evaluation practices. Research in witness psychology provides information regarding factors known to influence witnesses’ memory, interpretation and behaviour. In addition, psychological research can provide information about factors that may cause errors in decision-making. This information is useful for identifying harmful practices and finding ways to mitigate them. The research consists of four articles and a summarising report. Each article concentrates on a particular phase of a court procedure. The first article examines permissible practices in witness preparation, the second article takes a psychological view on cross-examination and the third and fourth articles concentrate on evidence evaluation. The doctoral thesis puts forward various development proposals for the interpretation of the law (de lege lata) and guidance on the court’s evaluation practices (de sententia ferenda). The main findings of the thesis are the following: First, to promote reliability of witness testimony, particular attention should be paid to the way in which the examiner, whether a legal counsel or a prosecutor, communicates with the witness before and during the trial. On the one hand, the study argues that many common practices in both witness preparation and cross-examination should be restricted or prohibited according to the existing law due to their distorting effect on witness testimony. On the other hand, the study also identifies recommendable practices that would support accurate recall and presentation of the testimony. Second, to promote the reliability of testimony evaluation, the thesis encourages decision-makers to ‘slow down’ and test their own reasoning. The study argues that a structured reasoning process and in particular falsification, i.e. the assessment, comparison and exclusion of alternative hypotheses, can improve the quality of the court’s assessment of evidence and reduce potential errors. In addition, when evaluating witness testimonies, the court should apply reliable generalisations, such as generalisations based on empirical research in witness psychology, while actively avoiding uncritical use of generalisations based on common sense and intuition. Finally, the study assesses an increasingly common practice of the Supreme Court of Finland of using psychology-based generalisations on its own initiative when evaluating witness evidence. The study argues that the Supreme Court’s practice has led to certain psychological generalisations receiving a precedential status and turning into weakly binding legal source. Although increased use of psychology and scientific research in the court’s evaluation practices should principally be welcomed, the study also identifies various challenges regarding the application of psychological research ex officio. Decision-makers should acknowledge these limitations before applying psychological generalisations on their own initiative.