COURT FILE NO.: CR 18-029 DATE: 2018/11/21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN J. Booy, on behalf of the Crown Respondent
- and -
HAIDEN SUAREZ-NOA C. Gill and S. Shabestary for the Accused Accused
HEARD: November 16, 2018
A. J. Goodman J.:
RULING ON ADMISSIBILITY OF DR. GOJER’S EXPERT OPINION EVIDENCE
[1] The defence proposes to call forensic psychiatrist Dr. Julian Gojer at trial to provide evidence on a mental state known as “dissociative amnesia” as it pertains to the accused.
[2] The accused notified the Crown of his intention to introduce this expert evidence, and this application was heard after he had completed his testimony.
[3] I had the opportunity to review the factums provided by the parties, the viva-voce evidence of the accused along with the expert opinion report drafted by Dr. G. Chaimowitz.
[4] At the conclusion of submissions, I provided an oral ruling with respect to the threshold admissibility of Dr. Gojer’s proposed expert opinion evidence. Having reviewed the relevant considerations for the introduction of expert opinion evidence, I held that the proposed evidence was inadmissible. The parties were advised that written reasons would follow. These are my Reasons.
Background:
[5] The accused, Mr. Suarez-Noa had a tumultuous intimate relationship with Ms. Tania Cowell, the deceased. They lived together and were parents to a five-month-old boy. They continually engaged in numerous arguments. On March 8, 2013, the accused and the deceased engaged in a lengthy argument over text messages, in which the deceased said that she was done with the relationship and told the accused to start looking for a new apartment.
[6] On March 9, 2013, the deceased had a change of mind and provided the accused with one further opportunity to return home.
[7] That same evening, Mr. Suarez-Noa fatally stabbed Ms. Cowell 11 times with a kitchen knife. In his initial statement to police, he alleged self-defence, but at the trial, he changed his defence to provocation and gave some evidence of a limited temporal memory loss of the number of stabbings inflicted.
[8] The applicant admitted remembering the first two stabs that he inflicted on the deceased, and he remembers watching her die. Following the stabbing, the applicant engaged in a host of goal-oriented behaviour including: wiping blood off of the deceased and his son, packing up, taking a picture of the deceased, locking the apartment door, and leaving. He then made some calls, rented a hotel room, transferred money to a friend, googled “homicide in Canada jail time” and turned himself over to police.
Positions of the Parties:
[9] Mr. Gill, on behalf of the accused, submits that Dr. Gojer’s opinion will go to Mr. Suarez-Noa’s state of mind and will enhance his client’s credibility as to why he did not recall the multiple stabbings. Further, as the issue of credibility is related to intent, the evidence is probative to the issue at trial.
[10] The defence submits that the Court of Appeal stated that Dr. Gojer’s evidence was properly the subject of expert medical opinion. The Court of Appeal acknowledged the relevance as the evidence “offered a medical explanation for Mr. Suarez-Noa’s professed inability to remember certain details.”
[11] The Crown’s lengthy cross-examination of Mr. Suarez-Noa was, for the most part, related to his memory. Specifically, his ability to remember detail in his past, which the Crown was contrasting with his inability to remember the events immediately following the stabbing of Ms. Cowell. The Crown also suggested to Mr. Suarez-Noa that he was in fact lying with respect to his memory loss. Essentially, the Crown is attacking Mr. Suarez-Noa’s credibility. The assessment of his credibility is the central issue for the triers of fact to decide, as it is his evidence and his evidence alone that raises the issue of provocation.
[12] While the Crown argues that Mr. Suarez-Noa is simply hiding behind a feigned lack of memory as a self-serving mechanism to forgo testifying to the truth, the defence suggests this argument is intellectually dishonest. The defence says that a mental dissociative state is a medically possible phenomenon, and whether or not Mr. Suarez-Noa suffered from it or is therefore lying, is an issue best left for the triers of fact.
[13] While it is acknowledged that the probative value of Dr. Gojer’s opinion is diminished by his inability to opine on whether Mr. Suarez-Noa was conclusively in a state of dissociation, the defence submits that the very nature of dissociative amnesia means any forensic psychiatrist can only ever opine that there is a possibility that it was present at the relevant time. Thus, Dr. Gojer’s opinion is as far as any responsible forensic psychiatrist can opine.
[14] The defence submits that the existence of a medical explanation for Mr. Suarez-Noa’s memory loss is highly relevant and therefore probative of a central issue at trial.
[15] In response, the Crown argues this evidence is unnecessary, inadmissible and confusing. Dr. Gojer is unable to say that the applicant experienced dissociation during the murder or that a potential dissociative state had any bearing on Mr. Suarez-Noa’s mental state. Put simply, general evidence regarding a dissociative state does not address any material issue at this trial. Dr. Gojer offered no opinion as to what effect a dissociative state could have on intent. Therefore, there was nothing linking a possible dissociative state to the ultimate issue, Mr. Suarez-Noa’s intent when he stabbed Tania Cowell.
[16] The Crown says that, in fact, Mr. Suarez-Noa’s actions and interview after the homicide demonstrate that he was not in a dissociative state. The accused displayed significant goal-directed behaviour in the immediate aftermath of the homicide. He was able to recall the stabbing in great detail during his police interview.
[17] The Crown submits that Dr. Gojer’s evidence is not relevant and that it cannot and will not assist the triers of fact in this case. The preconditions to admitting expert evidence are not met, and the prejudicial effect of the proposed evidence outweighs any probative value. Therefore, this presumptively inadmissible evidence should not be admitted.
The Proposed Evidence:
[18] Dr. Gojer was asked by defence counsel to comment on whether the accused suffered from dissociative amnesia. Dr. Gojer interviewed the accused for a total of six hours. Dr. Gojer referred to various sources of information in the preparation of his report, and of course, testified at the first trial.
[19] In Dr. Gojer’s April 27, 2012 report, he offers the following on dissociation:
Dissociation at the time of an emotionally charged event, a violent event and a homicidal event has been documented in the literature. The dissociation, an unconscious and involuntary experience can be in the form of dissociated actions and dissociated memories. Dissociated memories can be seen as part of a global dissociative experience encompassing the time period of an offense or can be post offense. Given the subjective nature of this experience and its retrospective nature, it is often difficult, if not impossible to determine the accuracy of the report of dissociation. There can be an incentive to malinger or fabricate dissociative symptoms and without external corroboration, or a prior history of dissociation, it is difficult to offer a conclusive opinion as to whether a person had a dissociative experience at the time of an offense. This applies to this case too, and while it is a possibility that Mr. Suarez Noa may have dissociated, he recalls all details leading up to the stabbing and the first two stabbings, and any dissociation that occurred appears to be following the onset of the stabbing and not before.
[20] Dr. Gojer was not able to say that the accused suffered from any mental illness or personality disorders. However, it is his opinion that it was possible that the applicant dissociated following the initial stabs, which explains why the applicant cannot remember the stabbing in its entirety.
[21] Dr. Gojer recognized that dissociation is a condition that is susceptible to feigning or malingering. He described the accused’s after-the-fact conduct as “goal-directed behaviour” which typically does not accord with a dissociated state.
[22] For this application, Dr. Gojer was neither provided with a relevant transcript of the evidence adduced during this trial, nor did he attend court to hear the accused’s testimony.
Legal Principles:
[23] In the seminal case of R. v. Mohan, [1994] 2 S.C.R. 9, Sopinka J. provided a framework for the admissibility of expert opinion evidence. The admission of expert opinion depends on the application of the following criteria:
a) Relevance (logically relevant to a material issue); b) Necessity in assisting the trier of fact; c) The absence of any exclusionary rule; and d) A properly qualified expert.
[24] The logical relevance of proffered expert opinion evidence is a threshold question of law to be determined by the trial judge. Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence. The jurisprudence suggests that logical relevance is a low threshold.
[25] In R. v. K. (A.) and K. (N.) (1999), 137 C.C.C. (3d) 225 (Ont. C.A.), at paras. 71-72, Charron J.A. (as she then was) held:
The opinion rule is a general rule of exclusion. Witnesses testify as to facts. As a general rule, they are not allowed to give any opinion about those facts. Opinion evidence is generally inadmissible. Opinion evidence is generally excluded because it is a fundamental principle of our system of justice that it is up to the trier of fact to draw inferences from the evidence and to form his or her opinions on the issue in the case.
[26] The opinion must be “reasonably necessary” to assist the jury, though it need not be “absolutely necessary”: Mohan, at p. 23, R v. Abbey, 2009 ONCA 624, (2009), 246 C.C.C. (3d) 301 (Ont. C.A).
[27] The expert evidence need not, on its own, tend to establish a fact in issue on a balance of probabilities. The evidence must however contribute in a meaningful way to the proof or likelihood of the existence of the fact at issue. Opinion evidence lacking or deficient in probative value should not be admitted.
[28] Where the expert opinion evidence is otherwise admissible, it may nevertheless be excluded on the application of the trial judge’s discretion to exclude evidence where the costs of its receipts outweigh the value of its admission in the circumstances of a specific prosecution. This is the “cost-benefit analysis” referred to in Mohan – a highly discretionary balancing exercise undertaken by the trial judge overarching the legal determination of the admissibility of all evidence: Mohan at p. 21.
[29] In the leading case of White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23, [2015] 2 S.C.R. 182, the Supreme Court of Canada provides further direction to trial judges on the rules of admissibility. There is now a robust degree of gatekeeping function required by trial judges. The judge determines whether the benefits of admitting the expert opinion evidence outweigh its potential risks. This has been referred to as the second stage but it is really an application of the general exclusionary rule. In essence, to admit the opinion evidence, it ought to provide information that is likely outside the experience or knowledge of the jury, and relates to something about which ordinary people are unlikely to form a correct judgment without expert assistance.
[30] In R. v. Abbey #2, 2017 ONCA 640, the Court of Appeal had another opportunity to reframe the test for the admissibility of expert opinion evidence. In referring to White Burgess, the court summarized the test as follows at paras 48 and 49:
Expert evidence is admissible when:
- It meets the threshold requirements of admissibility, which are: a. The evidence must be logically relevant; b. The evidence must be necessary to assist the trier of fact; c. The evidence must not be subject to any other exclusionary rule; d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert's duty to the court to provide evidence that is: i. Impartial, ii. Independent, and iii. Unbiased.
- The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as: legal relevance, necessity, reliability, and absence of bias.
In short, if the proposed expert evidence does not meet the threshold requirements for admissibility it is excluded. If it does meet the threshold requirements, the trial judge then has a gatekeeper function. The trial judge must be satisfied that the benefits of admitting the evidence outweigh the costs of its admission. If the trial judge is so satisfied then the expert evidence may be admitted; if the trial judge is not so satisfied the evidence will be excluded even though it has met the threshold requirements.
[31] In R. v. J. (J-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47, the court described the operation of the general exclusionary rule in terms of criteria for reception “measured against the counterweights of time, prejudice and confusion.”
[32] The cost-benefit analysis demands a consideration of the extent to which the proffered evidence is necessary to a proper adjudication of the fact(s) to which that evidence is directed.
[33] When considering the prejudicial effect or the “cost” side of the ledger, the trial judge must not only consider the “various risks inherent in the admissibility of expert evidence; rather, whether the evidence may divert the jury’s attention from the real issue(s) in the case. This may further run the risk that the jury will “abdicate its fact-finding role on the understandable assumption that a person labelled as an expert by the trial judge knows more about his or her area of expertise than do the individual members of the jury”: Abbey, at para 90.
It is settled law that the admissibility of an expert opinion may also depend on to what extent the opinion is founded on proven facts and to what extent does the proposed expert opinion supports the inference sought to be made from it.
Discussion:
[34] In R. v. Suarez-Noa 2017 ONCA 627, the principle issue in the Court of Appeal’s decision related to the finding of inadmissible evidence proffered by Dr. Gojer on the issue of provocation. As a result, a retrial was ordered.
[35] In its reasons, the court addressed the live issue before me in four succinct paragraphs. The court held at paras. 59 - 62:
[59] Dr. Gojer’s evidence offering dissociation as a medical explanation for memory loss was properly the subject of expert medical opinion. The evidence offered a medical explanation for Mr. Suarez-Noa’s professed inability to remember certain details, although Dr. Gojer’s inability to offer an opinion as to whether Mr. Suarez-Noa had dissociated reduced the evidentiary value of that opinion.
[60] On appeal, the Crown does not suggest that evidence of dissociation was not properly the subject of expert medical opinion. Instead, the Crown argues that the evidence should not have been received because of the confusion that the Crown claims the use of the word “dissociation” created in the proceedings. The Crown does not point to any confusion in Dr. Gojer’s evidence, but instead points to the alleged misuse of the term by defence and Crown counsel and the trial judge. However, the Crown does not argue that any of this confusion led to reversible error by the trial judge in his instructions to the jury.
[61] As I understand the submission, the Crown argues that the trial judge should have anticipated the potential confusion caused by the word “dissociation” and ruled that Dr. Gojer could not give the opinion concerning dissociation to avoid this subsequent confusion. I cannot accept this argument. I see no inherent risk of confusion in the use of the word “dissociation”. Dr. Gojer’s evidence on this point was not confusing. His evidence cannot be rendered inadmissible by virtue of the subsequent misuse of the word by counsel or the trial judge.
[62] It was within the discretion of the trial judge to admit Dr. Gojer’s evidence explaining dissociation and memory loss. Admittedly, the evidence had limited probative value as Dr. Gojer was unable to opine as to whether Mr. Suarez-Noa had dissociated at the time of the stabbing. However, that very same limited probative value which on the one hand argues against admitting the evidence, conclusively determines the absence of any prejudice to the Crown flowing from the admission of the evidence.
[36] It is not disputed that para. 62 leaves open the trial judge’s discretion to admit or deny the introduction of the expert evidence in this case. It is clear that I have discretion to reject the evidence where it does not have sufficient probative value to justify its reception: R. v. Yaeck (1991), 68 C.C.C. (3d) 545 (Ont. C.A.)
[37] It is also noteworthy that the Court of Appeal observed that the expert opinion evidence had “limited probative value”.
[38] As mentioned, it is my responsibility and duty to ensure that the gatekeeper function of admissibility of expert evidence or any evidence for that matter is considered. Appellate courts expect that trial judges will exercise this important gatekeeping function with diligence and due regard.
[39] In its factum, the defence requests that Dr. Gojer be permitted to give evidence, not only of dissociative amnesia, but also to explain why dissociative identity disorder is not applicable in this case.
[40] At the first trial, the accused pleaded not guilty. Here, he has pleaded guilty to manslaughter. This trial is focused on whether the crown has established his guilt of second degree murder beyond a reasonable doubt. In this case, the only issue for the jury is intent or whether the accused had the requisite state of mind to commit murder.
[41] It is trite law that an accused has the right to provide full answer and defence. I am aware of the Supreme Court of Canada’s direction with respect to defence experts as stated in R v. Seaboyer [1991] 2 SCR 557. Indeed, the ultimate test is whether the probative value is significantly exceeded by its prejudicial effect.
[42] However, that does not mean that evidence becomes relevant or admissible on that basis.
[43] Mental health professionals frequently present opinion evidence regarding whether an individual’s conduct diagnostically meets a particular standard, profile or common pattern of behaviour without ever having seen the person.
[44] The court must be vigilant to see whether the standard or pattern relied upon is reliable or representative of contemporary authoritative clinical thinking. This requirement is to ensure that the profile of distinctive features is not put together on an ad hoc basis for the purpose of a particular case.
[45] Ultimately, as the defence acknowledges, Dr. Gojer’s opinion does not go directly to intent. The defence urges that the admission of the opinion goes to Mr. Suarez-Noa’s credibility with respect to intent; a point on which there has been ample cross-examination of him, and therefore put in issue by the Crown.
[46] As the defence concedes in submissions, had there been an entire lack of recall of the stabbing, the probative value of the evidence would have been heightened. I tend to agree with the defence argument that if Mr. Suarez-Noa’s memory loss encompassed the first two stab wounds, - in other words the entirety of the stabbing conduct in question and the surrounding circumstances,- he may have been able to present the defence of dissociation.
[47] That is clearly not the evidence from the accused at this trial. It appears to stray into the area of mere conjecture for the jury to know that had Mr. Suarez-Noa’s position been that his memory loss occurred just a few seconds prior to the stabbing; that an additional defence would have been available to him. This notion cannot enhance his credibility with respect to the issue of his intent.
[48] In this case, we have potential opinions from two highly qualified professionals: Dr. Gojer, whose evidence I have referenced and Dr. Chaimowitz, who the Crown intends to call in reply should Dr. Gojer’s expert opinion evidence be admitted. Ever mindful of my limited role at this stage, in his report, Dr. Chaimowitz discusses the authoritative literature on dissociation:
Dissociation has been described in psychiatric literature and perhaps has best been shown in lay terms as a part of Multiple Personality Disorder (MPD), now known as Dissociative Identify Disorder. MPD is itself a condition with some controversy in psychiatry as some consider this a condition created by therapists. Dissociation suggests a complete splitting of the painful effects from consciousness, sometimes with the substitution of other symptoms. Trauma or near death experiences have led to some dissociation type experiences being reported. However, it is important to note that the phenomenon is usually associated with being a victim of significant trauma, not a perpetrator.
[49] Dr. Chaimowitz mentions the diagnostic features:
The defining characteristic of dissociative amnesia is an inability to recall important autobiographical information that 1) should be successfully stored in memory and 2) ordinarily would be readily remembered (Criterion A). Dissociative amnesia differs from the permanent amnesia due to neurobiological damage or toxicity that prevent memory storage or retrieval in that it is always potentially reversible because the memory has been successfully stored.
Localized amnesia, a failure to recall events during a circumscribed period of time, is the most common form of dissociative amnesia. Localized amnesia may be broader than amnesia for a single traumatic event (e.g., months or years associated with child abuse or intense combat). In selective amnesia, the individual can recall some, but not all, of the events during a circumscribed period of time. Thus, the individual may remember part of a traumatic event but not other parts. Some individuals report both localized and selective amnesias.
[50] Dr. Chaimowitz’s opinion includes the limitation of the information he reviewed. Dr. Chaimowitz gave much credence to the two and a half hour interview the accused had with Detective Rodzoniak shortly after the accused’s stabbing of Ms. Cowell. He opines that in the interview there is nothing to suggest dissociation in the period up to the death of the victim. Mr. Suarez Noa’s behaviour and mental state did not display any symptoms of major mental illness or evidence of dissociation. He appeared logical and frank in his detailed description of his behaviour around the time of the offence. In fact, his view is that they had a (non-physical) fight and he stabbed his girlfriend. His behaviour afterwards appears goal directed and logical inasmuch as one would after killing a partner.
[51] Dr. Chaimowitz also opined that there is nothing in the other materials reviewed to suggesting that Mr. Suarez Noa dissociated in the time leading up to the stabbing, the period from the stabbing to her death, and after the death of his girlfriend. He indicated that when people commit violent offences, especially those directed to people they care about, they may sometimes be so shocked as to what they have done that they may have no sketchy memory of the event. He opines that this could conceivably have been possible in this case, as Mr. Suarez-Noa appears to demonstrate some remorse and guilt. However, his immediate logical and fulsome description of what happened (the fight, the killing and immediate aftermath) means it is unlikely that this occurred. He added that it is important to note that denial, detachment and anger may be responses to stress.
[52] As trial judge, I must determine as a matter of law whether the proffered evidence is necessary, having regard to the existing evidentiary record and the issues raised by the prosecution and the defence. Expert evidence which is simply descriptive testimony without a diagnosis can amount to no more than oath-helping adding nothing unknown to the lay person: R. v. Lovie (1995), 100 C.C.C. (3d) 68 (Ont. C.A.), at pp. 79-80; R. v. Villamar, [1996] O.J. No. 2742 (S.C.J.), at paras. 5-8, aff’d [1999] O.J. No. 1923 (C.A.).
[53] In my view, that is exactly what the proposed evidence entails here; bolstering the credibility of the accused in his professed lapse of how many times he stabbed the deceased.
[54] Indeed, from his testimony, it is obvious that Mr. Suarez-Noa has a remarkable memory and is very detail oriented. Throughout his testimony he provided dates, times and details that were quite precise. During the incident itself, he recalls details leading up to the confrontation. This includes all of the surrounding circumstances and the initial two stab wounds, then seeing blood, the deceased falling to the floor, shaking. He recalls immediately taking her to the living room by her legs and recounts all of the subsequent events with some enriched degree of specificity.
[55] The sole issue here is intent. The accused admits stabbing her in the general area of the upper chest, neck or shoulder areas. This is consistent with the pathologist evidence and that these wounds were lethal. It matters not for the ultimate issue to be decided, that of intent; whether he stabbed her twice or 11 times, as the case may be. The intent or lack thereof is formed with the first strike to the deceased. He testified that he was in a rage, he lost it. The jury can accept that evidence and are able to ascertain whether in a fit of rage or loss of temper, Mr. Suarez-Noa did not know or recall how many times he stabbed the deceased. They do not need an expert to explain a common sense proposition to them, should they accept the accused’s testimony.
[56] A finding that some aspects of the evidence might reasonably have assisted the jury is not enough. The practice of a relatively relaxed standard of necessity has been revised in more recent appellate decisions. In assessing the need for expert evidence, the authorities speak of what an “ordinary” person or an “average” juror would know or have experienced and whether such a person would benefit from skilled assistance. If the jurors can make a decision unaided by expert opinion testimony, it is not required.
[57] Dr. Gojer is neither offering a diagnosis nor a review of the deceased’s mental health state. I also note the specific language in the report that introduces his conclusions. This is followed by a listing of a whole host of descriptors of various psychiatric illnesses.
[58] While a diagnosis per se, is not a bar to admissibility of expert opinion evidence, Dr. Gojer’s evidence amounts to a possibility that dissociation occurred to a very minor degree. Nowhere in the report does Dr. Gojer relate common features of a dissociative event to the facts of this case. In fact, he states it is often difficult, if not impossible, to determine the accuracy of a report of dissociation.
[59] Dr. Gojer cannot opine if in fact the accused was suffering from dissociative amnesia. He fairly concedes that there could be a host of other reasons for the accused to have memory lapses with respect to the number of stabbings. Indeed, there are other competing inferences that can be drawn from the evidence. Dr. Gojer also admits that the applicant could be malingering. It could also be the loss of temper. It may be just that and nothing more.
[60] While I am mindful that it is the exclusive domain of the trier of fact to assess the competing inferences to be drawn, as trial judge I am able to conduct a limited analysis or weighing of such inferences in my overall assessment of the admissibility question.
[61] It seems to me that expert evidence is not required to explain or elaborate on the obvious. It cannot explain the accused’s behaviour and it is not relevant to the ultimate issue of intent for second degree murder versus manslaughter. I fail to see how a conclusory psychiatric classification made of the deceased could assist the jury in the circumstances of this case. A jury can draw its own conclusions from the accused’s testimony, his actions, along with all of the evidence that will afford the basis with respect to his lack of intent to commit murder or for the legal excuse of provocation. See R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272.
[62] While one could argue that the evidence many merely be oath-helping, nonetheless, I cannot see any connection to the material issues. Even if I am wrong in that regard, the evidence to be adduced is so lacking in probity, that its prejudicial effect will substantially outweigh any probative value.
[63] I agree with the defence that if the evidence was permitted to be adduced from both Dr. Gojer and Dr. Chaimowitz, it would not take more than one-half to a day of trial. However, this does not fully address the analysis. Even if the introduction of the evidence would not involve an inordinate amount of time, it is not commensurate with its value. Nor does it address whether the evidence could be misleading in its effect in a manner out of proportion to its reliability.
[64] To sum up, I agree with the concluding comments provided by Dr. Chaimowitz: “In my opinion, the trier(s) of the facts do not require additional expert psychiatric opinion on dissociation to explain why Mr. Suarez-Noa acted in the way he did. There is in my opinion no indication of dissociation in the period leading up to and after the death of the victim.”
Conclusion:
[65] I am not persuaded that Dr. Gojer’s opinion will assist with the jury’s determination of the accused’s credibility, recall or lack of memory per se with the issues to be determined in this trial, namely, the intent for murder or legal excuses or defences. The jury does not require any psychiatric impressions to address the evidence described in Dr. Gojer’s report and already adduced in evidence during this trial. Nor do they require an expert to interpret what they may or may not accept from the accused himself as to his recall or memory of certain events and conduct on the night in question.
[66] In the overall cost benefit analysis, the proposed opinion will only serve to confuse the triers of fact and provide two competing opinions from two renowned forensic psychiatrists on an issue that is within the jury’s domain. The potential expert opinion may attract disproportional weight, dressed up in scientific language and submitted through a witness of impressive credentials. I find that the probative value of this evidence is significantly outweighed by its prejudice. The application to admit Dr. Gojer’s expert opinion is dismissed.
A.J. Goodman J. Date: November 21, 2018