Professional Liability of the Construction Professional as an Expert Witness in the Spanish Legal Framework

Inside COBRA 2011 RICS International Research Conference, the present paper is linked to analyze the liability of the construction professional in his practice as a expert witness in the Spanish legal framework. In a large number of legal procedures related to the building it is necessary the intervention of the expert witness to report on the subject of litigation, and to give an opinion about possible causes and solutions. This field is increasingly importantly for the practice of construction professional that requires an important specialization. The expert provides his knowledge to the judge in the matter he is dealing with (construction, planning, assessment, legal, ...), providing arguments or reasons as the base for his case and acting as part of the evidence. Although the importance of expert intervention in the judicial process, the responsibilities arising from their activity is a slightly studied field. Therefore, the study has as purpose to think about the regulation of professional activities raising different aims. The first is to define the action of the construction professional-expert witness and the need for expert evidence, establishing the legal implications of this professional activity. The different types of responsibilities (the civil, criminal and administrative) have been established as well as the economic, penal or disciplinary damages that can be derived from the expert report

Jurors' responses to expert witness testimony: The effects of gender stereotypes

The present study investigated whether the impact of expert testimony was influenced by the congruency between the gender of the expert and the gender orientation of the case. Participants (N = 62) read a trial transcript involving a price-fixing allegation in either a male or female oriented domain. Within the case, the gender of the expert was manipulated. As predicted, the impact of the expert (e.g. damage awards) was greater when the gender of the expert and domain of the case were congruent as opposed to incongruent. Results also indicated that the impact of gender-domain congruency was particularly pronounced following group discussion. In addition, there was evidence that this effect was mediated through participants' evaluations of the expert witness.

Negotiating proximity:expert testimony and collective memory in the trials of environmental activists in France and the United Kingdom

This article analyzes the role of expert witness testimony in the trials of social movement actors, discussing the trial of the "Kingsnorth Six" in Britain and the trials of activists currently mobilising against airport construction at Notre Dame des Landes in western France. Though the study of expert testimony has so far overwhelmingly concentrated on fact-finding and admissibility, the cases here reveal the importance of expert testimony not simply in terms of legal argument, but in "moral" or political terms, as it reflects and constitutes movement cognitive praxis. In the so-called climate change defence presented by the Kingsnorth Six, I argue that expert testimony attained a "negotiation of proximity," connecting different types of contributory expertise to link the scales and registers of climate science with those of everyday understanding and meaning. Expert testimony in the trials of activists in France, however, whilst ostensibly able to develop similar bridging narratives, has instead been used to construct resistance to the airport siting as already proximate, material, and embedded. To explain this, I argue that attention to the symbolic, as well as instrumental, functions of expert testimony reveals the crucial role that collective memory plays in the construction of both knowledge and grievance in these cases. Collective memory is both a constraint on and catalyst for mobilisation, defining the boundaries of the sayable. Testimony in trials both reflects and reproduces these elements and is a vital explanatory tool for understanding the narrativisation and communication of movement identities and objectives. © 2013 The Author. Law & Policy © 2013 The University of Denver/Colorado Seminary.

Legislative and security requirements of audit material for evidentiary purpose

This research used the Queensland Police Service, Australia, as a major case study. Information on principles, techniques and processes used, and the reason for the recording, storing and release of audit information for evidentiary purposes is reported. It is shown that Law Enforcement Agencies have a two-fold interest in, and legal obligation pertaining to, audit trails. The first interest relates to the situation where audit trails are actually used by criminals in the commission of crime and the second to where audit trails are generated by the information systems used by the police themselves in support of the recording and investigation of crime. Eleven court cases involving Queensland Police Service audit trails used in evidence in Queensland courts were selected for further analysis. It is shown that, of the cases studied, none of the evidence presented was rejected or seriously challenged from a technical perspective. These results were further analysed and related to normal requirements for trusted maintenance of audit trail information in sensitive environments with discussion on the ability and/or willingness of courts to fully challenge, assess or value audit evidence presented. Managerial and technical frameworks for firstly what is considered as an environment where a computer system may be considered to be operating “properly” and, secondly, what aspects of education, training, qualifications, expertise and the like may be considered as appropriate for persons responsible within that environment, are both proposed. Analysis was undertaken to determine if audit and control of information in a high security environment, such as law enforcement, could be judged as having improved, or not, in the transition from manual to electronic processes. Information collection, control of processing and audit in manual processes used by the Queensland Police Service, Australia, in the period 1940 to 1980 was assessed against current electronic systems essentially introduced to policing in the decades of the 1980s and 1990s. Results show that electronic systems do provide for faster communications with centrally controlled and updated information readily available for use by large numbers of users who are connected across significant geographical locations. However, it is clearly evident that the price paid for this is a lack of ability and/or reluctance to provide improved audit and control processes. To compare the information systems audit and control arrangements of the Queensland Police Service with other government departments or agencies, an Australia wide survey was conducted. Results of the survey were contrasted with the particular results of a survey, conducted by the Australian Commonwealth Privacy Commission four years previous, to this survey which showed that security in relation to the recording of activity against access to information held on Australian government computer systems has been poor and a cause for concern. However, within this four year period there is evidence to suggest that government organisations are increasingly more inclined to generate audit trails. An attack on the overall security of audit trails in computer operating systems was initiated to further investigate findings reported in relation to the government systems survey. The survey showed that information systems audit trails in Microsoft Corporation's “Windows” operating system environments are relied on quite heavily. An audit of the security for audit trails generated, stored and managed in the Microsoft “Windows 2000” operating system environment was undertaken and compared and contrasted with similar such audit trail schemes in the “UNIX” and “Linux” operating systems. Strength of passwords and exploitation of any security problems in access control were targeted using software tools that are freely available in the public domain. Results showed that such security for the “Windows 2000” system is seriously flawed and the integrity of audit trails stored within these environments cannot be relied upon. An attempt to produce a framework and set of guidelines for use by expert witnesses in the information technology (IT) profession is proposed. This is achieved by examining the current rules and guidelines related to the provision of expert evidence in a court environment, by analysing the rationale for the separation of distinct disciplines and corresponding bodies of knowledge used by the Medical Profession and Forensic Science and then by analysing the bodies of knowledge within the discipline of IT itself. It is demonstrated that the accepted processes and procedures relevant to expert witnessing in a court environment are transferable to the IT sector. However, unlike some discipline areas, this analysis has clearly identified two distinct aspects of the matter which appear particularly relevant to IT. These two areas are; expertise gained through the application of IT to information needs in a particular public or private enterprise; and expertise gained through accepted and verifiable education, training and experience in fundamental IT products and system.

Virtopsy, a new imaging horizon in forensic pathology: virtual autopsy by postmortem multislice computed tomography (MSCT) and magnetic resonance imaging (MRI)--a feasibility study

Using postmortem multislice computed tomography (MSCT) and magnetic resonance imaging (MRI), 40 forensic cases were examined and findings were verified by subsequent autopsy. Results were classified as follows: (I) cause of death, (II) relevant traumatological and pathological findings, (III) vital reactions, (IV) reconstruction of injuries, (V) visualization. In these 40 forensic cases, 47 partly combined causes of death were diagnosed at autopsy, 26 (55%) causes of death were found independently using only radiological image data. Radiology was superior to autopsy in revealing certain cases of cranial, skeletal, or tissue trauma. Some forensic vital reactions were diagnosed equally well or better using MSCT/MRI. Radiological imaging techniques are particularly beneficial for reconstruction and visualization of forensic cases, including the opportunity to use the data for expert witness reports, teaching, quality control, and telemedical consultation. These preliminary results, based on the concept of "virtopsy," are promising enough to introduce and evaluate these radiological techniques in forensic medicine.

Governor Tom Judge: Early Years - The Path to Becoming Montana's 18th Governor -- Sidney Armstrong, Larry Pettit & Kent Kleinkopf “In the Crucible of Change”

The dramatic period of progressive change in Montana that is documented "In the Crucible of Change" series really exploded with the election of Governors Forrest Anderson and Tom Judge. Anderson's single term saw the dispatching of the sales tax as an issue for a long period, the reorganization of the executive branch of state government and the revision of Montana's Constitution. As a former legislator, county attorney, Supreme Court justice, and Attorney General, Anderson brought unmatched experience to the governorship when elected. Tom Judge, although much younger (elected MT’s youngest governor at age 38 immediately following Anderson), also brought serious experience to the governorship: six years as a MT State Representative, two years as a MT State Senator, four years is Lieutenant Governor and significant business experience. The campaign and election of John F. Kennedy in 1960 spurred other young Americans to service, including Tom Judge. First elected in 1960, he rose rapidly through MT’s political-governmental hierarchy until he took over the governorship in time to implement many of the changes started in Governor Anderson’s term. But as a strong progressive leader in his own right, Governor Judge sponsored and implemented significant advancements of his own for Montana. Those accomplishments, however, are the subject of other films in this series. This film deals with Tom Judge’s early years – his rise to the governorship from when he returned home after college at Notre Dame and newspaper experience in Kentucky to his actual election in November 1972. That story is discussed in this episode by three major players in the effort, all directly involved in Tom Judge’s early years and path to the governorship: Sidney Armstrong, Larry Pettit and Kent Kleinkopf. Their recollections of the early Tom Judge and the period of his advancement to the governorship provide an insider’s perspective of the growth of this significant leader of the important period of progressive change documented “In the Crucible of Change.” Sidney Armstrong, President of Sidney Armstrong Consulting, serves on the board and as the Executive Director of the Greater Montana Foundation. Formerly Executive Director of the Montana Community Foundation (MCF), she has served on national committees and participated in national foundation initiatives. While at MCF, she worked extensively with MT Governors Racicot and Martz on the state charitable endowment tax credit and other endowed philanthropy issues. A member of MT Governor Thomas L. Judge’s staff in the 1970s, she was also part of Governor Brian Schweitzer’s 2004 Transition Team, continuing to serve as a volunteer advisor during his term. In the 1980s, Sidney also worked for the MT State AFL-CIO and the MT Democratic Party as well as working two sessions with the MT Senate as Assistant Secretary of the Senate and aide to the President. A Helena native, and great granddaughter of pioneer Montanans, Sidney has served on numerous nonprofit boards, and is currently a board member for the Montana History Foundation. Recently she served on the board of the Holter Museum of Art and was a Governor’s appointee to the Humanities Montana board. She is a graduate of the International School of Geneva, Switzerland and the University of Montana. Armstrong's Irish maternal immigrant great-grandparents, Thomas and Maria Cahill Cooney, came to Virginia City, MT in a covered wagon in 1865, looking for gold. Eventually, they settled on the banks of the Missouri River outside Helena as ranchers. She also has roots in Butte, MT, where her journalist father's family, both of whom were newspaper people, lived. Her father, Richard K. O’Malley, is also the author of a well-known book about Butte, Mile High, Mile Deep, recently re-published by Russell Chatham. She is the mother of four and the grandmother of eight. Dr. Lawrence K. Pettit (Larry Pettit) (b. 5/2/1937) has had a dual career in politics and higher education. In addition to being Montana’s first Commissioner of Higher Education (the subject of another film in this series); Pettit, of Lewistown, served as legislative assistant to U.S. Senators James E. Murray and Lee Metcalf, campaign manager, head of transition team and assistant to Montana Governor Thomas L. Judge; taught political science at The Pennsylvania State University (main campus), was chair of political science at Montana State University, Deputy Commissioner for Academic Programs at the Texas Higher Education Coordinating Board, Chancellor of the University System of South Texas (since merged with Texas A&M University), President of Southern Illinois University, and President of Indiana University of Pennsylvania from where he retired in 2003. He has served as chair of the Commission on Leadership for the American Council on Education, president of the National Association of (University) System Heads, and on many national and state boards and commissions in higher education. Pettit is author of “If You Live by the Sword: Politics in the Making and Unmaking of a University President.” More about Pettit is found at http://www.lawrencekpettit.com… Kent Kleinkopf of Missoula is co-founder of a firm with a national scope of business that specializes in litigation consultation, expert vocational testimony, and employee assistance programs. His partner (and wife of 45 years) Kathy, is an expert witness in the 27 year old business. Kent received a BA in History/Education from the University of Idaho and an MA in Economics from the University of Utah. The Kleinkopfs moved to Helena, MT in 1971 where he was Assistant to the Commissioner of State Lands (later Governor) Ted Schwinden. In early 1972 Kent volunteered full time in Lt. Governor Tom Judge’s campaign for Governor, driving the Lt. Governor extensively throughout Montana. After Judge was elected governor, Kent briefly joined the staff of Governor Forrest Anderson, then in 1973 transitioned to Judge’s Governor’s Office staff, where he became Montana’s first “Citizens’ Advocate.” In that capacity he fielded requests for assistance from citizens with concerns and information regarding State Agencies. While on the Governor’s staff, Kent continued as a travel aide with the governor both in Montana and nationally. In 1977 Kent was appointed Director of the MT Department of Business Regulation. That role included responsibility as Superintendent of Banking and Chairman of the State Banking Board, where Kent presided over the chartering of many banks, savings and loans, and credit unions. In 1981 the Kleinkopfs moved to Missoula and went into the business they run today. Kent was appointed by Governor Brian Schweitzer to the Board of the Montana Historical Society in 2006, was reappointed and continues to serve. Kathy and Kent have a daughter and son-in-law in Missoula.

An introduction to forensic linguistics:language in evidence

From the accusation of plagiarism in The Da Vinci Code, to the infamous hoaxer in the Yorkshire Ripper case, the use of linguistic evidence in court and the number of linguists called to act as expert witnesses in court trials has increased rapidly in the past fifteen years. An Introduction to Forensic Linguistics: Language in Evidence provides a timely and accessible introduction to this rapidly expanding subject. Using knowledge and experience gained in legal settings – Malcolm Coulthard in his work as an expert witness and Alison Johnson in her work as a West Midlands police officer – the two authors combine an array of perspectives into a distinctly unified textbook, focusing throughout on evidence from real and often high profile cases including serial killer Harold Shipman, the Bridgewater Four and the Birmingham Six. Divided into two sections, 'The Language of the Legal Process' and 'Language as Evidence', the book covers the key topics of the field. The first section looks at legal language, the structures of legal genres and the collection and testing of evidence from the initial police interview through to examination and cross-examination in the courtroom. The second section focuses on the role of the forensic linguist, the forensic phonetician and the document examiner, as well as examining in detail the linguistic investigation of authorship and plagiarism. With research tasks, suggested reading and website references provided at the end of each chapter, An Introduction to Forensic Linguistics: Language in Evidence is the essential textbook for courses in forensic linguistics and language of the law.

Forensic linguistics : the application of language description in legal contexts

In this article I first divide Forensic Linguistics into three sub-disciplines: the language of written legal texts, the spoken language of legal proceedings, and the linguist as expert witness and then go on to give a small number of examples of the research undertaken in these three areas. For the language of written legal texts, I present work on the (in) comprehensibility of police cautions and of judges instructions to juries. For the spoken language of legal proceedings, I report work on the problems of interpreted interaction, of vulnerable witnesses and the need for more detailed research comparing the interactive rules in adversarial and investigative systems. Finally, to illustrate the role of the linguist as expert witness I report a trademark case, five different authorship attribution cases, three very different plagiarism cases and I end reporting briefly the contribution of linguists to language assessment techniques used in the linguistic classification of asylum seekers. © Langage et société no 132 - juin 2010.

The National Institute of Justice guide for eyewitness identification evidence: Can it improve juror decision-making?

Mistaken eyewitness identifications of innocent lead to more false convictions in the United States than any other cause. In response to concerns about the reliability of eyewitness evidence, the National Institute of Justice (NIJ) in 1999 published a Guide for the gathering and preservation of eyewitness evidence by law enforcement personnel. Previous research has shown that eyewitness identifications are more accurate when obtained using procedures recommended in the NIJ Guide. This experiment assessed whether informing jurors about the Guide can improve their ability to discriminate between eyewitness identifications likely to be accurate and those likely to be inaccurate and, if so, how to most effectively provide jurors with such information. ^ Seven hundred sixteen U.S. citizens who reported for criminal jury duty participated. Half of the participant jurors read a summary of an armed robbery trial in which the police followed the NIJ Guide when obtaining an eyewitness identification of the defendant. The other half read about an identical case in which the police did not follow the Guide. Jurors received information about the Guide from a court-appointed expert witness, one of the attorneys in the case, the trial judge, the judge in combination with one of the attorneys, or from no one (in the control groups). Jurors then rendered a verdict in the case and answered questions about the evidence in the case. ^ When an expert witness or the judge (either alone or in combination with one of the attorneys) informed jurors about the Guide, the jurors voted to convict defendants likely to be guilty and to acquit defendants likely to be innocent more often than did uninformed jurors assigned to a control group. These data suggest that informing jurors about the NIJ Guide using expert testimony or instructions from a judge will improve the quality and accuracy of jurors' verdict decisions in cases involving eyewitness identification evidence. However, more research is needed to determine whether the judge will remain an effective source of information about the Guide in a longer, more detailed trial scenario and to learn more about the underlying psychological processes governing the effects observed in this experiment. ^

Evaluation of contact and non-contact trapping efficiencies of human scent chemical profiles and their stabilities under different environmental conditions

Establishing an association between the scent a perpetrator left at a crime scene to the odor of the suspect of that crime is the basis for the use of human scent identification evidence in a court of law. Law enforcement agencies gather evidence through the collection of scent from the objects that a perpetrator may have handled during the execution of the criminal act. The collected scent evidence is consequently presented to the canines for identification line-up procedures with the apprehended suspects. Presently, canine scent identification is admitted as expert witness testimony, however, the accurate behavior of the dogs and the scent collection methods used are often challenged by the court system. The primary focus of this research project entailed an evaluation of contact and non-contact scent collection techniques with an emphasis on the optimization of collection materials of different fiber chemistries to evaluate the chemical odor profiles obtained using varying environment conditions to provide a better scientific understanding of human scent as a discriminative tool in the identification of suspects. The collection of hand odor from female and male subjects through both contact and non-contact sampling approaches yielded new insights into the types of VOCs collected when different materials are utilized, which had never been instrumentally performed. Furthermore, the collected scent mass was shown to be obtained in the highest amounts for both gender hand odor samples on cotton sorbent materials. Compared to non-contact sampling, the contact sampling methods yielded a higher number of volatiles, an enhancement of up to 3 times, as well as a higher scent mass than non-contact methods by more than an order of magnitude. The evaluation of the STU-100 as a non-contact methodology highlighted strong instrumental drawbacks that need to be targeted for enhanced scientific validation of current field practices. These results demonstrated that an individual's human scent components vary considerably depending on the method used to collect scent from the same body region. This study demonstrated the importance of collection medium selection as well as the collection method employed in providing a reproducible human scent sample that can be used to differentiate individuals.

Judging psychology experts: Can judges and attorneys distinguish between clinical and experimental psychologists?

A trial judge serves as gatekeeper in the courtroom to ensure that only reliable expert witness testimony is presented to the jury. Nevertheless, research shows that while judges take seriously their gatekeeper status, legal professionals in general are unable to identify well conducted research and are unable to define falsifiability, error rates, peer review status, and scientific validity (Gatkowski et al., 2001; Kovera & McAuliff, 2000). However, the abilities to identify quality scientific research and define scientific concepts are critical to preventing "junk" science from entering courtrooms. Research thus far has neglected to address that before selecting expert witnesses, judges and attorneys must first evaluate experts' CVs rather than their scientific testimony to determine whether legal standards of admissibility have been met. The quality of expert testimony, therefore, largely depends on the ability to evaluate properly experts' credentials. Theoretical models of decision making suggest that ability/knowledge and motivation are required to process information systematically. Legal professionals (judges and attorneys) were expected to process CVs heuristically when rendering expert witness decisions due to a lack of training in areas of psychology expertise.^ Legal professionals' (N = 150) and undergraduate students' (N = 468) expert witness decisions were examined and compared. Participants were presented with one of two versions of a criminal case calling for the testimony of either a clinical psychology expert or an experimental legal psychology expert. Participants then read one of eight curricula vitae that varied area of expertise (clinical vs. legal psychology), previous expert witness experience (previous experience vs. no previous experience), and scholarly publication record (30 publications vs. no publications) before deciding whether the expert was qualified to testify in the case. Follow-up measures assessed participants' decision making processes.^ Legal professionals were not better than college students at rendering quality psychology expert witness admissibility decisions yet they were significantly more confident in their decisions. Legal professionals rated themselves significantly higher than students in ability, knowledge, and motivation to choose an appropriate psychology expert although their expert witness decisions were equally inadequate. Findings suggest that participants relied on heuristics, such as previous expert witness experience, to render decisions.^

Linking the witness simulation software to an expert system to represent a decision-making process

Expert systems, and artificial intelligence more generally, can provide a useful means for representing decision-making processes. By linking expert systems software to simulation software an effective means of including these decision-making processes in a simulation model can be achieved. This paper demonstrates how a commercial-off-the-shelf simulation package (Witness) can be linked to an expert systems package (XpertRule) through a Visual Basic interface. The methodology adopted could be used for models, and possibly software, other than those presented here.