...appearing court, thereby leaving legal professionals to challenge the reliability of eyewitness identifications themselves. Little is currently known, however, about the knowledge and opinions of legal professionals, in particular public defenders, on eyewitness identification issues, The present study surveys an opportunity sample of Australian legal practitioners, using a modified version of the questionnaire developed by Kassin, Ellsworth. and Smith (1989) in order to compare respondents' answers with those of eyewitness experts. The results of the present survey are encouraging, with public defenders showing both high levels of agreement among themselves, and a consensus with experts on the majority of eyewitness issues, In light of these findings we suggest that further research should be undertaken to investigate the relative impacts of judicial instruction and expert evidence on eyewitness issues.

Key words: expert testimony, eyewitnesses, judges, juror knowledge, legal system, memory.

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Australian courts have shown some reluctance to allow eyewitness experts to give testimony about the factors known to influence the likely accuracy of an eyewitness identification (R v Smith, 2000, NSWCCA 388; Smith v The Queen, 2001, 206 CLR 650, 75 ALJR 1398). Given this, it is important to assess the knowledge and opinions of legal professionals, and to compare them with those of eyewitness experts. During the last 25 years, research psychologists have conducted several survey and questionnaire studies to investigate the knowledge and opinions held by legal professionals on eyewitness identification issues. Surveys of law students (McConkey & Roche, 1989; Noon & Hollin, 1987; Yarmey & Jones, 1983), law enforcement personnel (Benton, Ross, Bradshaw, Thomas, & Bradshaw, 2006; Potter & Brewer, 1999; Wogalter, Malpass, & McQuiston, 2004), lawyers (Potter & Brewer, 1999; Rahaim & Brodsky, 1982; Yarmey & Jones, 1983) and judges (Benton et al., 2006; Wise & Safer, 2004; Yarmey & Jones, 1983), have provided estimates of the extent to which the opinions of legal professionals correspond with the evidence-based knowledge of eyewitness researchers. The consistent finding emerging from these studies has been that, when compared to the opinions of eyewitness experts, legal professionals demonstrate a limited appreciation for the factors known to influence the reliability of eyewitness identifications (Benton et al., 2006; Penrod & Cutler, 1999). This in turn has fuelled doubts that legal professionals can adequately defend accused persons when trials involve eyewitness identification evidence.

Before expert opinion evidence can be deemed admissible in many courts in Australia, it must first be established that the person testifying has specialized knowledge, for example, based on the person's training, study or experience and that the opinion of that person is wholly or substantially based on that knowledge (section 79 Evidence Act 1995 (Cth, NSW); 2001 (Tas)). In addition to these criteria, if the prejudicial value of the expert's evidence is considered to outweigh the probative value, the judge has a discretion to exclude the experts' evidence (section 135 Evidence Act 1995 (Cth, NSW), 2001 (Tas)). This can place considerable restrictions on the admissibility of eyewitness expert evidence and, to date, eyewitness expert evidence has been admitted in only two cases in NSW: R v Sarago (2006) and R v Skaf (2006), thereby in most cases leaving the onus on Australian legal professionals to address eyewitnessing issues, and assist jurors to evaluate the eyewitness evidence.

The knowledge of Australian trainee lawyers and legal professionals relating to eyewitness issues has been surveyed on two separate occasions, first by McConkey and Roche (1989) and then 10 years later by Potter and Brewer (1999). Using the Knowledge of Eyewitness Behaviour Questionnaire (KEBQ; Deffenbacher & Loftus, 1982), McConkey and Roche (1989) compared 60 advanced law students to 47 advanced and 124 introductory psychology students. It was concluded that although all three groups had limited knowledge of eyewitness memory, psychology students who had been lectured on human memory displayed significantly more knowledge than introductory psychology students and legal students familiar with eyewitness evidence law. These findings were consistent with those observed by researchers measuring attitudes and knowledge of students in the United States and the United Kingdom (Deffenbacher & Loftus, 1982; Noon & Hollin, 1987).

Potter and Brewer (1999) asked 67 detectives, 41 legal practitioners (prosecution and defence) and 119 undergraduate psychology students to estimate how well 12 different witness behaviours (such as displaying excessive confidence, providing testimony inconsistent with other witnesses or with earlier statements and fidgeting), predict the accuracy of a witness's testimony. Across all groups, a number of witness behaviours were commonly interpreted as indicators of likely testimonial inaccuracy (e.g., too much confidence and recalling items not previously recalled), even though there is no empirical evidence to support the existence of such relationships.

More recently, Benton et al. (2006) replicated the approach adopted by Kassin and Barndollar (1992) by comparing the knowledge and opinions of jurors, judges and law enforcement personnel with those of eyewitness experts surveyed by Kassin, Tubb, Hosch, and Memon (2001) and found that judges and law enforcement personnel displayed similar overall accuracy rates and were significantly more likely to concur with expert opinion (40%) than were potential jurors (13%).

Encouragingly, this pattern of results suggests an increase in the psychological knowledge of legal professionals over time. The present study surveys an opportunity sample of Australian legal practitioners, using a modified version of the questionnaire used by Kassin et al. (2001) in order to ascertain if this trend continues. The responses obtained are compared to those of eyewitness experts surveyed by Kassin et...

NOTE: All illustrations and photos have been removed from this article.



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