Limits on Testimony
Forensic testimony is subject to two kinds of limitation, which might be termed external and internal. The external limitations involve complex procedures, statutes, and regulations that prevent experts from testifying at all in particular locales and under particular circumstances. The internal limitations relate to those aspects of an expert’s testimony that are not permitted to be heard by the jury. This section describes those barriers.
EXTERNAL LIMITS ON TESTIMONY
One of the most common external limitations on experts has to do with licensing statutes in the various jurisdictions throughout the United States and provinces of Canada. Licensing is typically a matter of state jurisdiction. Individuals must obtain a license to practice for each individual jurisdiction, or they may be cited for practicing their profession without a license. This issue seems to be more stringent for physicians than it is for other mental health professionals, such as psychologists. For the latter, some states will offer some leeway for an individual to practice 1 or 2 days per month without a license, as long as he or she is licensed in good standing in another jurisdiction; this flexibility is particularly significant, because licensing is not a national credential. For example, several states allow psychologists who hold a valid license in another jurisdiction to work up to 6 days of professional service per calendar year, under the condition that their professional activities do not exceed the allotted time for practicing without a state license. The reader is referred to an excellent article by Tucillo et al. (1), which is cited in Dattilio and Sadoff (2).
The more stringent requirements for physicians, in many state laws, preclude psychiatrists from practicing without a license unless they work in tandem with a local psychiatrist who is licensed to practice medicine in that particular jurisdiction; in that arrangement they may, therefore, be covered. The apparent purpose of these limitations is the somewhat misdirected attempt both to avoid the “hired gun” problem discussed later and to prevent individuals from venturing in and out of jurisdictions without a license to practice, unaware of the specific state laws governing their field.
Another example involves the use of certain assessment measures, such as psychological tests. The issue has been raised many times in courts of law across the country whether any mental health professionals, other than licensed psychologists, should be administering, scoring, and interpreting psychological tests. Some nonpsychologists actually contend that the use of such assessment measures falls within their scope of practice (3). The issue is not globally resolved; local jurisdictions should be checked.
INTERNAL LIMITS ON TESTIMONY
The Matter of Truth
Facts are not truths; they are not conclusions; they are not even premises. The truth depends on, and is only arrived at, by a legitimate deduction from all the facts that are truly material.
–SAMUEL TAYLOR COLERIDGE
It is probably safe to assume that Coleridge did not have psychiatric expert witnesses in mind in his comment, but the applicability of the sentiment is quite appropriate to the expert’s opinion-generating process. Truth enters the courtroom, presumably, when the witness has taken the oath to tell “the truth, the whole truth, and nothing but the truth.” The wording, only apparently redundant, actually defines the constraints on testimony:
… the wording aims to be comprehensive, endeavoring to keep a witness, say, from misleading a jury with lies instead of truth; half-truths instead of the whole truth; or truths submerged in untrue, misleading or distracting filler rather than the unclouded truth, “nothing but the truth” (4, p. 422).
However, it is also clear to anyone familiar with the legal system that truth is neither the only nor the defining factor in the appearance of testimony in the courtroom. The truth is always in tension, as it were, with the question of admissibility, discussed in more detail in the next section.
Admissibility itself is molded by often conflicting considerations of justice, relevance, precedent, probity, prejudice and aid to the fact finder; and in tension with the deliberate shaping of meaning by the questioning attorney in accordance with that side of the adversarial process. Only in the comic book Superman were truth and justice sought simultaneously (4, p. 422).
Because both attorneys’ questions serve as the practical evokers of the witness’s testimony, their attempts to serve their clients by structuring favorably the evidence presented in the courtroom act as the primary forces bearing on whether what the witness is allowed to say is indeed the whole truth; the opposing attorney’s objections, if sustained by the judge, may further cramp the witness’s efforts to deliver on his or her oath.
Faced with such attorneys, the expert witness may be torn among conflicting ethical pressures: loyalty to the oath, the need to answer the question responsively, the wish not to argue or to seem to argue on direct or cross-examination; and the desire not to mislead the jury (4, p. 423).
In addition to the foregoing, the judge may also provide an “admissibility filter” between the totality of the expert’s opinion—the “whole truth”—and what is permitted into the courtroom as actual testimony. Many experts have had the experience of having the judge permit some but not all of their testimony to be admitted, while for the expert, the testimony is a unified and consistent whole.
The following examples are drawn from actual but disguised cases to illustrate the occasional conflicts between the whole truth and the admissible truth.
Excluded Truth
EXAMPLE:
A 27-year-old man with mental retardation and psychiatric illness was placed in a respite program. At one point a plaintiff’s attorney asserted various sweeping claims against the respite provider, leading to a trial. The patient’s record contained psychiatrically relevant data consistent with abuse by his father. Before trial, the defense expert was advised by the defense attorney that the judge had ruled that the allegation of physical abuse by the client’s father was “off limits” and should not be mentioned or discussed. In fact, the attorney claimed that the judge would declare a mistrial if the jury learned that there was discussion in the record of the father being abusive. The resultant ethics dilemma became apparent to the expert when he said, under oath, “I swear to tell the truth, the whole truth, and nothing but the truth.” It was unclear to the expert whether the attorney had properly conveyed the judge’s ruling or perhaps had exaggerated, and he was preoccupied during testimony with concerns about how to avoid the key issue of abuse. Although the subject fortunately never arose in the actual trial, the expert was unsure how it would or should have been handled. The expert experienced a fear of inadvertently “throwing a wrench into the works” (4, p. 424).
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