The Clinician in Court



The Clinician in Court






I. CASE EXAMPLE

Without warning, a therapist receives a subpoena to testify in court the following week. At first, she is sure that a mistake has been made, because she has never been involved in the treatment of offenders or in performing evaluations for the courts. When, at the suggestion of a colleague, she calls the office of the attorney whose name appears at the bottom of the subpoena, she is told by a secretary that the case in question is an action for damages after an auto accident in which the condition of the plaintiff before the accident is a prime issue of contention. The secretary says that it is her impression that the therapist is being subpoenaed because she has been treating the plaintiff.

Looking more closely at the subpoena, the therapist recognizes the married name of a current psychotherapy patient who usually uses her maiden name. The patient had begun treatment only 3 months previously under the stress of impending marital separation. Although patient and therapist have touched on many issues together, their sessions have focused on the patient’s relationship with her husband, an extramarital affair about which the husband does not know, and her feelings about her father, who had died when she was only 6 years old. The accident has not been mentioned.

After the passing of her initial shock at being subpoenaed, the therapist becomes concerned at the prospect of having to testify. She worries about the time it would take for her to appear in court. The amount of money that she stands to lose is substantial, but she is also concerned about the effect of such an abrupt cancellation of appointments on some unstable patients. In addition, she fears that the testimony that she could be forced to give in court might damage her therapeutic relationship with her patient, leading the patient to withdraw from therapy at a time when she especially needs the support that the therapist could provide. Finally, it is unclear to the therapist what role the court expects her to play. She does not believe that she knows enough
about the legal issues involved or about how the accident affected the patient to contribute in any meaningful way to the court’s decision. On the other hand, she is fearful that some of the information that she might reveal, particularly concerning the extramarital affair, might needlessly damage her patient’s life.

Faced with this confusing array of issues, the therapist decides to call her patient to inform her that the subpoena has arrived. The patient is distraught at the news and says that she will contact her lawyer immediately. She confirms the therapist’s impression that she does not want her to testify in any way concerning her mental state. Quite uncertain about how to protect the multitude of interests that she now sees endangered, the therapist approaches a colleague whose practice is largely devoted to forensic work to ask his advice.


II. LEGAL ISSUES


A. THE ROLE OF THE EXPERT WITNESS

Mental health professionals are increasingly called on to serve the legal process. Sometimes clinicians are called as ordinary or “fact” witnesses to testify about occurrences they have perceived themselves (e.g., an assault by one patient on another). A common fact witness in mental health proceedings might be a treating psychiatrist. Other times, however, mental health professionals are called to the stand as “expert” witnesses, which allows them to serve in a different role. The function of an expert witness may be voluntarily assumed, as in the case of those forensic clinicians whose practice is almost entirely devoted to evaluations and courtroom testimony; however, sometimes clinicians are unwillingly drawn into the adversarial process. This may occur when a patient requires commitment or when the contact that a clinician had with a patient and the opinions that she formed become relevant to non-mental health litigation, such as a child-custody case or a suit for psychic damages after a negligent act. Thus, all clinicians are susceptible to unexpected subpoenas and ought to be aware of the formal and informal rules governing their participation in courtroom proceedings.


1. Definition of an Expert Witness

Wigmore’s classic legal treatise on evidence defines an expert as someone who has the “skill to acquire accurate conceptions.” Federal Rule of Evidence 702, moreover, elaborates a “job description”: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:



  • the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;


  • the testimony is based on sufficient facts or data;


  • the testimony is the product of reliable principles and methods; and


  • the expert has reliably applied the principles and methods to the facts of the case.

In those circumstances in which the bare facts are inadequate to lead the average person to an informed judgment, the expert has the capacity to draw meaningful conclusions from those facts. An expert need not be possessed of a formal degree (e.g., a self-trained ornithologist, whose expertise has come to be widely recognized, might qualify as an expert in a case in which the identification of a particular species of bird is relevant). In cases of alleged mental illness, however, the courts, abandoning their historic position that even a layperson can tell if someone is crazy or not, have turned more and more to mental health professionals for help in interpreting individual behavior.

The status of expert can be granted in two ways. The legislature can determine that groups of professionals should be considered experts for a given purpose. In many states, physicians and psychologists are allowed to provide expert testimony at commitment hearings, whereas other clinicians, even those who may be quite familiar with mental disorders, are excluded. In most cases, though, it is the court that decides if an individual should be deemed an expert on the issue in question. For issues related to mental health, the tendency in recent years has been for courts to exclude nonpsychiatric physicians from expert witness status while being more liberal about allowing psychologists and occasionally social workers to testify as experts.


The use of mental health experts is increasing in both civil and criminal cases. In civil cases, for example, as the courts have become more receptive to claims of negligent infliction of emotional distress (see Chap. 6, Sec. II-C-3), mental health testimony has become more prevalent. In criminal cases, the US Supreme Court recognized that the assistance of a psychiatrist may be essential to the preparation and presentation of a defendant’s case, even when he is not invoking the insanity defense. The Court’s 1985 ruling in Ake v. Oklahoma established the constitutional necessity of making mental health experts available to indigent defendants at the state’s expense. More recently, in McWilliams v. Dunn, the Court underscored that the state-funded expert must be available to consult with the defense, not merely to evaluate the defendant, but declined to opine on whether the defense is entitled to its own expert, as opposed to one shared with the prosecution, for the purpose.


2. Admissibility of Expert Testimony

It is not sufficient for a clinician to be qualified as an expert for her testimony to be admitted. The evidence that she intends to present must meet certain standards of relevance, probable helpfulness to the decision-maker, and reliability. For many decades, the most commonly used standard to determine the reliability of expert testimony—and, hence, its admissibility at trial—was embodied in the 1923 US federal court decision in Frye v. U.S. The Frye standard required that the method by which the expert’s conclusion was reached be generally accepted in her field. In the Frye case, this general acceptance standard was used to exclude testimony based on a lie-detector examination.

Controversy dogged Frye from its conception, including contentions that it discriminated against novel approaches and uncertainty over how general acceptance was to be determined. Concern was also expressed that Frye set the standard for admissibility too low. For example, so long as an expert used a generally accepted technique, such as a clinical interview, any conclusion at all, no matter how far-fetched or unsupported by data, could be admitted.

The Frye case’s many problems led ultimately to its rejection by the US Supreme Court in its 1993 decision in Daubert v. Merrell-Dow. In place of Frye’s general acceptance test, Daubert charges judges with determining the reliability of an expert’s testimony, a task that extends to examination of an expert’s conclusions and not merely his methods. The court eschewed any single indicator of reliability, listing instead a number of possible indicia, including publication in a peer-reviewed journal. Daubert itself applied only to the federal courts, and its relevance to clinical as opposed to scientific testimony was unclear. But a few years later in Kumho Tire, the Supreme Court ruled that the Daubert standards should be applied to expert testimony based on professional judgment, which encompasses most of the evidence offered by mental health experts. Subsequent cases in state courts suggest that this approach is gaining wide (though not universal) adherence and, as expected, is being applied to expert testimony rendered by clinicians.


3. The Scope of Expert Testimony

The expert witness is allowed greater flexibility within the usually strict rules of evidence than the nonexpert witness.

a. The opinion rule. In general, witnesses are permitted to testify only to facts relevant to a given case; opinions are excluded. Thus, a witness may be allowed to state that the defendant drove his car through two red lights before the accident. Should the witness insert an implicit opinion about the defendant’s driving (e.g., saying that the defendant “drove through those lights like he didn’t give a damn”), it would be stricken from the record as a violation of the opinion rule. The rule is based on the belief that it is the job of the jury, not of the witness, to evaluate the factual information presented; to the extent that the witness has no greater ability to do so than does the jury (or the judge), her opinions are irrelevant to the trial process.

The expert is, on the other hand, allowed to state an opinion in situations in which the average person would be unable to form a meaningful opinion from the facts of the case. The information that an individual was talking rapidly, had not slept for three nights, and was fearful that his plan for bringing peace to the Middle East might be sabotaged by the Central Intelligence Agency is, to most people, a confusing collection of interesting, but bizarre, facts. Only a clinician is capable of bringing order to those facts by offering an opinion that they may represent manifestations of a manic episode, for example, with attendant grandiosity and paranoia.


Expert testimony is permitted only when the judge determines, as a matter of law, that the facts in question cannot be properly analyzed by a layperson. In some cases, an expert might be allowed to offer an opinion on one aspect of an individual’s behavior but not on another, because the judge believes that the latter (e.g., the confusion of a demented person) is susceptible to determination by the untrained mind. An expert’s opinion may also be excluded as irrelevant to the issue at hand or as prejudicial to the deliberations of the factfinder, the latter being more commonly invoked when the decision is being made by a jury, rather than by a judge.

b. The hearsay rule. Ordinarily, an individual’s testimony is permitted to be based only on facts that he has perceived directly. Anything else is considered to be hearsay. In practice, this means that if a patient has threatened harm directly to someone, the latter can testify to the reality of the threat. If the threatened person has told the patient’s psychiatrist about the threat, however, the psychiatrist may not offer the threat as evidence, because that would be hearsay. The rationale is that it is improper to admit evidence that cannot be tested in the cross-examination.

Even experts are usually bound by the hearsay rule. One exception is relevant here. Although an expert cannot introduce hearsay evidence to establish a fact (e.g., that the threat was made), she is permitted to offer hearsay testimony in support of her opinion. Thus, if the psychiatrist has concluded that the patient is dangerous and in need of involuntary commitment, she may introduce her second-hand knowledge of the threat as a basis for that opinion. In addition, she may rely on documentary information generated by others whom she has not met (e.g., a note in a previous hospital record) to bolster her conclusions. Of course, that the opinion is at least partially based on hearsay may serve to weaken it under cross-examination, but this is not the expert’s problem. Note that all history from persons who are examined directly or from collateral informants, although essential to clinical work, is basically hearsay.

c. The hypothetical question. The expert witness has the right to answer a hypothetical question, a function that ordinary witnesses, whose testimony is limited to the recounting of observations, cannot fulfill. Hypothetical questions are useful in obtaining the expert’s opinion about a situation other than the one she presumes to have existed. Because the jury is under no obligation to accept the expert’s version of the facts, a hypothetical question allows both sides of a case to place the expert’s opinion on record with regard to any one of a number of factual situations that the jury might determine to have been present.

Hypothetical questions sometimes stretch the bounds of the expert’s imagination, but they do allow the attorneys to probe more carefully the basis for the expert’s opinion by altering one element of the history at a time to determine the crucial variable. The fallacy in many cases, and one that any alert expert should point out in responding, is that psychopathologic signs and symptoms often appear in conjunction as syndromes, so that to alter or omit one or another element of the presentation may present an artificial picture that has no correspondence to reality. Nonetheless, the expert may not refuse to answer hypothetical questions, and the well-prepared expert anticipates them and thinks through potential responses in advance.

d. The weight of expert testimony. Many clinicians may naively assume that, having been summoned into court to testify as an expert in a given case, their opinion will be the decisive element in its resolution. Although that may sometimes be true (e.g., empirical studies of commitment hearings have shown that unopposed psychiatric testimony is usually accepted without challenge, and psychiatric recommendations are usually followed), in most instances, for a variety of reasons, the expert’s testimony is not the decisive factor. First, in many important cases, both sides obtain their own experts who often offer contradictory testimony. It is then up to the judge or the jury, the composition of which may be a key determinant of the outcome of the case, to decide which expert or set of experts to believe.

Even when expert testimony is not contradicted, the legal finders of fact are still free to disregard it. The expert is expected not only to offer an opinion but also to state grounds on which that opinion has been formulated. To the extent that those grounds are unpersuasive, the testimony is ignored. Although this may appear to the expert witness to be farcical (because the basis for him being called to testify in the first place was the assumption that the jury members were not able to draw their own conclusions about the evidence), the jury is free to decide that the expert lacks credibility in this case. Even if the expert’s factual assertions are accepted, his conclusions with regard to the legal issues can be rejected by the fact finder. Thus, despite expert agreement that a
defendant was unlikely to have been criminally responsible at the time of a heinous crime, a court might find her responsible and guilty because the values of the community are such that it will not let the perpetrator go unpunished. Although frustrating to the expert, such flexibility allows the system to express the moral sentiments of society.


4. Discrediting Expert Testimony

As with all evidence offered in court, the opinion of an expert may be subject to rigorous cross-examination. Some lines of attack are common to all challenges of expert witnesses. Opposing attorneys often challenge the expert’s credentials, either as an individual (e.g., her training was insufficient) or as a member of a group (e.g., no psychiatrist can expertly testify about future dangerousness). The opposing attorney may question how much money the expert is receiving for her testimony, implying that the expert’s objectivity and opinion are for sale to the highest bidder. The adequacy of her examination, the validity of the conclusions, even the theoretical basis on which her opinion was drawn, all are open to attack.

Psychiatric witnesses, moreover, are particularly vulnerable in a number of these areas. Given the profusion of schools of thought in mental health, it is easy for an enterprising attorney to find professional literature that flatly contradicts almost any theoretical assumption on which an opinion rests. Guides have been published to alert attorneys to these issues of controversy and to steer them to the relevant citations (see Suggested Readings, Faust). Particularly vulnerable are an expert’s opinions about the nature of the defendant’s diagnosis (given studies showing low reliability of diagnoses among raters), the presumed psychodynamic bases for the patient’s behavior (given the panoply of anti-Freudian literature), and a prediction of dangerousness (given studies showing that psychiatrists and other clinicians are poor predictors). The relevance of medical-school training to assessing psychological problems, the reliability of information gathered in the clinical interview, the presumed effect of experience on the ability to make a more accurate diagnosis, and the propensity of psychiatrists to seek unnecessarily protective environments for their patients may also be challenged.

Any mental health professional who is going to testify regularly in court, or even in a single, particularly important case, should familiarize himself or herself with a book such as Faust’s, anticipate the arguments that are most likely to be offered, and gather references to refute them. Of special note is that many of the studies that showed psychiatric diagnosis to be unreliable were performed several decades ago and took into account neither the heightened awareness of psychiatrists to conditions such as bipolar illness nor the effect on reliability of the increasingly specific criteria for diagnosis listed in the Diagnostic and Statistical Manual of Mental Disorders, now in its fifth edition (DSM-5).

Experts possess several advantages, although small ones, in this struggle. First, an expert cannot be made to answer a question with a simple “yes” or “no” when he believes that further qualification is needed. Second, no textbook or other published work can be cited to challenge an expert’s opinion unless the expert either explicitly has relied on that work in formulating his opinion or acknowledges it as an authoritative work in the field. Finally, experts cannot be compelled to reach an opinion when they are uncertain of what the correct response would be. “I don’t know” is always an acceptable answer, especially to a hypothetical question.


5. The Vicissitudes of Being an Expert

a. The unwilling expert. In cases in which the expert has agreed to undertake an evaluation for forensic purposes, there is usually no question about the expert’s willingness to present the data in court. Therapists who attain expert knowledge about patients in therapeutic situations, however, and are then asked to testify about that knowledge are usually less-than-eager witnesses. The reasons for their reluctance may range from an unwillingness to spend time away from their work to a fear of the impact of such testimony on their former or current patient, to a dislike of courtroom procedures and of aggressive attorneys.

Nonetheless, when a clinician is properly subpoenaed and when her patient waives privilege or when privilege is inapplicable (see Chap. 1, Sec. II-C-5), she cannot legitimately avoid testifying. She may be called as a fact witness or asked to opine as an expert. Lawyers are often warned to shun the unwilling expert, for fear that the disgruntled witness will torpedo their case by placing even favorable information in an unfavorable light. Despite this, experts are frequently called
against their will because their testimony is perceived as crucial to the outcome of the case. The only solace for the unwilling expert is that she can bill the side that subpoenaed her for a reasonable expert’s fee, in addition to expenses.

b. The nonexpert expert. As noted in Sec. II-A-3-a, the court is free to define the extent to which any individual may speak with expert status on the facts of a case. This means that a professional who is an expert in mental health may be called to testify as an ordinary witness. This is obviously true when the clinician has witnessed an event unrelated to his field of expertise (e.g., a bank robbery). The professional can similarly be called to testify only to the facts of an occurrence on an inpatient ward, as when one patient assaults another, without being asked for an expert opinion on the matter. Clinicians are frequently in this situation when called to introduce into evidence clinical records of a factual sort (e.g., medication logs that they have compiled).

Although relieved of the evidentiary and ethical burdens of the expert witness, the nonexpert expert is at a disadvantage when it comes to reimbursement for her time. Ordinary witnesses are reimbursed at a standard rate for travel and lost time, usually amounting to a fraction of their usual income. To the professional who loses hundreds of dollars as a result of abandoning clinical activities for the time involved, it is often cold comfort that our system of justice relies on such sacrifices from all of us to perform its fact-finding function.

c. The expert discovered. An expert who agrees to testify in court can find himself answering questions in quite a different setting as well. As part of the procedures for equalizing the contest between parties in a civil suit, the courts have developed a set of elaborate pretrial investigative routines that are encompassed by the term discovery. The discovery process permits each side of a case to summon and interrogate the principals and witnesses for the opposing side before the case reaches the trial stage. Thus, an expert who conducts a psychiatric examination for the plaintiff in a psychological damages case may find himself subpoenaed to present the results of his or her examination to the lawyers for the defense.

Discovery can take several forms. The questions to which the opposing party wants answers can be transmitted in writing and responded to in kind (i.e., a written interrogatory), or the witness can be summoned to an attorney’s office to answer questions in person (i.e., an oral deposition). In addition, documents such as hospital records or objects can be requested, or the opposing party may demand that the expert be permitted to perform a physical, psychiatric, or psychological examination of the plaintiff. Although each side can always challenge the other’s requests for information, courts are generally quite liberal about granting the desired access. One exception is material that may be privileged in court, such as, depending on the context, much of the information conveyed in clinical sessions (see Chap. 1, Sec. II-C-3), which is similarly privileged in discovery and should not be revealed without the patient’s waiver or a judicial order abrogating the privilege.

Discovery has been subjected to some criticism because of its use in malpractice and other tort suits that have been filed without adequate reason to believe that negligence occurred; aggressive discovery can then be used in a legal “fishing expedition” that is designed to uncover enough adverse facts to justify going to trial.

For the expert witness, the most important point is that testimony obtained by means of pretrial discovery can be as potent and critical as anything said in court. Discovery, whether oral or written, takes place under oath, and, although it ordinarily cannot be introduced at trial in lieu of a witness’s testimony, it can be used to challenge and discredit testimony that does not correspond to the account that the witness gave earlier during discovery. The rules that a careful witness should observe, therefore, are identical to those that should govern trial testimony (see Sec. III-C); the witness should, above all, present her responses in a thoughtful manner that reflects her final conclusions on the subject. A careless comment at the taking of a deposition can completely destroy a witness’s effectiveness.

d. Licensure of experts. Traditionally, expert testimony by physicians and other licensed health professionals did not require licensure in the jurisdiction in which they were testifying. So long as they were licensed somewhere, that was adequate to allow their testimony to be admitted (assuming, of course, that it met the other requirements for admissibility). This situation is now
in flux, and an expert accepting a case in a jurisdiction in which he is not licensed can no longer presume, without further inquiry, that he will be permitted to testify and will not suffer adverse consequences if he does.

Changes in rules and practices regarding licensure have been driven by concern over experts who travel from state to state to testify in malpractice cases. Rightly or not, organized medicine has attributed to such experts’ significant responsibility for growth in the number and size of malpractice verdicts adverse to defendants. Statutes and regulations adopted by some states in response to these concerns require local licensure for any medical expert and may define courtroom testimony as the practice of medicine subject to the review of the local licensure board. Experts without such licensure may not be permitted to testify, or if they do, may be subject to sanctions for practicing medicine without a license.

As a consequence, it behooves clinicians who are approached to act as experts in a jurisdiction in which they are not licensed to ascertain whether this will be an issue for them. This is particularly advisable if they are being asked to perform a direct evaluation of a party to the case in a state in which they are not licensed. The easiest way of doing this is to pose the question to the attorney who is seeking to engage them. Since many attorneys use medical and mental health experts infrequently, they may need to be encouraged to investigate the local rules. Alternatively, the clinician can contact the appropriate board of licensure in the jurisdiction in which her testimony is sought and pose the question to board staff. Should licensure be required, it may be possible to obtain temporary licensure on a courtesy basis in some states. Experts who frequently testify in a given jurisdiction may want to seek permanent licensure. It may also be possible for an expert to act as a consultant to a local, licensed clinician, who offers the actual testimony, thus avoiding the conflict.

e. Liability for expert testimony. Potential liability for expert testimony is another issue that has not been of great concern in the past but is now something that an expert witness must consider. In general, the law immunizes witnesses for statements made in court proceedings, so long as they are not knowingly being untruthful. In the latter case, recourse can be had to the criminal law for a charge of perjury. The rationale for this immunity is the desire that witnesses speak frankly on the stand, without fear of liability for slander or other torts. Hence, experts have traditionally operated without concern about civil liability, and so long as they were being truthful, without risk of criminal liability either.

However, aspects of experts’ activities that do not directly involve testimony (oral or written) may be susceptible to a variety of claims, including malpractice. Possible grounds for such allegations include a negligently performed fact-finding process (e.g., failing to obtain or review relevant records) that results in a conclusion adverse to a party to the case and negligent examination of a plaintiff (e.g., unskillful questioning that induces persistent emotional trauma). Given the real, but small, risk of such claims, clinicians who function as expert witnesses should be certain that their malpractice insurance covers forensic activity. Some policies do this automatically, but other insurers require the purchase of a rider to the policy at additional expense (sometimes referred to as “administrative insurance”).


B. THE ADVERSARIAL SYSTEM

The culture shock that frequently accompanies the entry of a mental health professional into the courtroom setting derives from profound differences in the orientations of the legal and mental health professions. Nothing so typifies this divergence in approaches as the assumptions that underlie the adversarial system.


1. The Theory of the Adversarial System

It has long been the presumption in Anglo-American jurisprudence that truth can only be ascertained by witnessing the combat of minds, each attempting to prove the falsehood of the other’s position. So important is this belief that a large part of procedural law is devoted to enhancing the ability of the contesting parties to attack each other as vigorously as possible. Such rules in civil cases as pretrial discovery, and in criminal cases as the constitutional rights to notice of the charges, speedy and public trial, confrontation of witnesses, power of subpoena, and representation of counsel, were all devised to equalize and maximize the ability of each side to prove its point.


Other approaches to truth do exist, of course. The collaborative model, in which all of the involved parties pool their data and share their insights, is the more familiar schema in scientific and clinical work; in some legal and forensic contexts, such collaboration may be referred to as the “hot tub” approach whereby all experts are in the same “pool” and can exchange views. But the law generally rejects such methods as insufficiently protective of individual rights. An exception to this general practice of eschewing nonadversarial approaches occurred from the early twentieth century until roughly the late 1960s in both juvenile and mental health proceedings. Reasoning that the wayward young and the mentally ill were not really criminals and could benefit more from the collaborative efforts of the courts, the professions, and the state, legislatures relaxed the ordinarily strict procedural guidelines. Hearings were held informally, hearsay was accepted as evidence, counsel were excluded, cross-examination was shunned, and the goal was generally framed not so much to assign blame as to settle on the most desirable and therapeutic outcome.

The difficulty with this ostensibly humane approach to juveniles and the mentally ill was that what seemed desirable from the point of view of the court was not necessarily equally desirable for the individual. The parens patriae assumption that the state knows better than the individual what is in his best interest (see Chap. 2, Sec. II-D-2-b), although used to justify such procedures, was called into serious question when it was recognized that juveniles and mentally ill persons alike were being committed to facilities that were underfunded, understaffed, custodial at best, and brutalizing at worst. When the legal profession recognized that its abandonment of the adversarial model was in part responsible for the commitment of so many to such institutions, the quick-step march began to reinstitute the safeguards. Juvenile law and mental health law both have been dominated in the last several decades by the reimposition of an adversarial framework.

Although the return of the adversarial approach may be regretted, it can certainly be understood in this light. Clinicians may be uncomfortable with the adversarial system, but its replacement in the future (at least insofar as persons with mental illness are concerned) is dependent on not only the goodwill of those involved in the courts of law but also on the willingness of society to validate the paternalistic approach by providing adequate resources to construct truly beneficent institutions. Both seem unlikely.


2. The Role of the Lawyer

The key to the effectiveness of any adversarial approach to truth is the performance of the advocate—in this case, the attorney. If adversarial theory is fully applied, the lawyer can have only one approach to her work: an unflagging and undeviating devotion to proving that her client’s position is correct. In those cases in which the lawyer actually believes this to be the case, or in many civil suits in which honest differences of opinion can arise about the issues at stake, this presents few problems for attorneys. The lawyer attempts not only to construct as solid a case as possible for her client but also to contest at every point the assertions of the opposition. A number of ethical problems, however, arise (1) in civil and criminal cases in which the attorney believes her client to be wrong and (2) in cases for which the goal of the hearing is not to punish or reward but to treat or protect.

a. Criminal cases. Lawyers’ codes of ethics are complicated documents that struggle with these problems but inevitably provide no entirely satisfactory solutions. The vigorous defense of those the lawyer believes to be guilty is justified by establishing certain procedural safeguards (e.g., lawyers are not allowed to present, or to let their clients present, deliberate falsehoods) and by arguing that insofar as the system requires an adversarial confrontation to establish the truth, it would be impossible (and unconstitutional as well) to deny the assistance of counsel to some defendants who are believed in advance of trial to be guilty without making a mockery of the entire adversarial system. Yet, the fact that lawyers must exert their full efforts to defend the guilty is still a troubling matter for many of them. One suspects that the reluctance of so many of the graduates of the finest law schools to enter criminal law is in part related to this issue.

b. Parens patriae proceedings. A different set of ethical issues is raised by legal proceedings ostensibly designed to benefit their subjects. Many juvenile court hearings and most mental health proceedings (with the partial exception of commitments initiated under a pure “dangerousness to others” rationale) fall into this category. To the extent that the subjects of these hearings are
less capable than the state to decide wherein lie their best interests (the basis for any parens patriae action), it appears at first glance something of an anomaly to encourage lawyers to defend their client’s wishes as forcefully as possible. If the best interests of a psychotic individual obviously require hospitalization, the lawyer who successfully persuades a judge to release his client to the fortunes of the street may wonder what good his pleadings have accomplished. In fact, it was just this line of logic that led to periods of relaxation of adversarial procedures in the early part of the twentieth century and again in the 1950s.

What has induced the reversion to stricter adversarial proceedings has been the previously noted perception that, theory aside, the actual dispositions of the mentally ill, in most cases in state hospitals, were not clearly in their best interests. Of course, many would argue that commitment to even the less-well-run state hospitals was preferable to allowing psychotic people to roam the streets, but the impact of the social theorists of institutional life, the labeling theorists of mental disorders, and the diverse arms of the antipsychiatry movement has been to convince many members of the legal system otherwise. Few ethical problems bother attorneys who doubt that mental illnesses exist or who consider psychiatrists to be mere agents of social control. They might be expected to approach every hearing with the aim of preventing their client from being hospitalized.

Other attorneys, often those with more experience in practical mental health law or those who have had a chance to observe the natural course of mental illness, recognize a tension between their charge from the system to “defend” their clients maximally and their desire to see their clients obtain the help they need. This tension is frequently resolved by their subverting the adversarial component of their work, acting instead in what they perceive to be their client’s best interests. Perfunctory challenges to psychiatric credentials and testimony, waivers of certain procedural niceties, and questions designed to display their client’s level of psychopathology may be involved here. Almost every study of commitment proceedings has uncovered such behavior, but it is usually chalked up to incompetence on the part of the attorney or insufficient time or remuneration to prepare a case. Both of the latter are undoubtedly often important, but even efforts to train attorneys to perform more aggressively in circumstances in which these factors are minimized have failed. As long as the adversarial nature of the system appears to work against the needs of the mentally ill for assistance, many attorneys take what seems to them to be the common-sense approach to dealing with the problem.


3. The Adversarial System and the Expert Witness

Foremost among the complaints of most novice expert witnesses is that they were subject to a cross-examination that seemed to resemble the name-calling games of their childhood more than a dispassionate search for truth. The likely content of this attack was outlined previously (see Sec. II-A-4), but the emotional impact must be taken into account as well. A respected professional whose expertise, competence, and integrity are questioned, and sometimes shaken, before an audience of nonprofessionals may feel as violated as a victim of a street mugging. Some leading forensic experts claim to relish the combat of minds involved in a cutting cross-examination, but for most professionals, it is the low point of their careers.


4. Discovering the Truth in Court

Platitudes from civics class aside, one of the most startling revelations for novice witnesses is that the pursuit of truth is not always the judicial system’s preeminent value. Some examples of this slighting of truth in favor of other values have already been alluded to. The rules governing hearsay evidence, for example, are enforced even in cases in which the evidence can be shown to be quite reliable, because the value of preserving the adversarial system itself takes precedence over the discovery of truth in any given case. A clinician who is barred from testifying about threats reported by a patient’s family because she did not hear them, with the result that a patient who she asserts is dangerous is released, may be bewildered at this apparent failure of the legal system. Clinicians, of course, tend to be pragmatists, willing to adopt any stratagem or to abandon any theory if the patient is thereby helped. However, the legal system often sees things differently and should be accepted on its own terms if mutual bitterness is not to be the inevitable result of interaction between psychiatry and law.

These sorts of compromises with the unfettered pursuit of truth may seem more reasonable if viewed in a slightly broader perspective. Breaching the confidentiality of the psychiatrist-patient
relationship may aid the search for truth in many instances, but because society values the benefits that derive from such relationships, it is forbidden in many circumstances in all state and federal courts (see Chap. 1, Sec. II-B-3). Similarly, forcing a criminal defendant to testify about his own activities may produce the most reliable evidence of what actually occurred, but forced self-incrimination is precluded by the US Constitution. In these and comparable instances, it is not an exaggeration to say that, when truth and justice compete for preeminence in court, the avowed goal of the system is to assure that justice prevails.


C. ETHICAL ISSUES FOR EXPERT WITNESSES


1. General Principles

In clinical settings, psychiatrists and other mental health professionals owe primary loyalty to advancing patients’ interests. The lack of relevance of the dominant principles of beneficence (acting to benefit patients) and nonmaleficence (acting to avoid causing them harm) in the forensic setting has led some psychiatrists to despair of finding an alternative set of principles by which forensic practice can be governed. It hardly makes sense to talk of benefiting and not harming subjects of forensic evaluations when the consequences of testimony may be decidedly adverse to their interests (e.g., conviction of a crime, rather than a finding of not guilty by reason of insanity). Does this imply that forensic practitioners are acting unethically whenever they perform an evaluation or that they do their work in a moral vacuum?

The answer to both parts of that question is “no.” Although the ethical principles operative in clinical contexts do not apply in the absence of a physician-patient relationship aimed at provision of treatment, an alternative set of principles can be identified to guide us in the forensic realm. Identification of those principles requires reflection on the societally sanctioned task that forensic clinicians perform. Rather than advancing patients’ interests in health, as they would in the clinical setting, clinicians performing forensic evaluations are promoting the societal interest in justice. From this function flow the two primary principles that guide their work (see Suggested Readings, Appelbaum, “A Theory of Ethics for Forensic Psychiatry”).

a. Truth-telling. Evidence of the first principle guiding forensic evaluation comes from the oath every witness takes at deposition or trial to “tell the truth, the whole truth, and nothing but the truth.” Truth-telling is the sine qua non of the evaluation process. This principle has two components. The expert must be subjectively truthful (i.e., saying only those things he or she honestly believes to be true) and, as suggested by the phrase “the whole truth” in the witness’s oath, objectively truthful as well. This means that, insofar as possible, the ethical expert attempts to acquire relevant information, makes clear the limitations on the certainty or reliability of her opinion (e.g., it represents a minority or idiosyncratic view of the literature), and acknowledges the legitimacy (when real) of opposing views.

b. Respect for persons. As noted (see Sec. II-B-4), the legal system is not devoted to the unalloyed pursuit of truth. At times, other concerns, such as fairness to defendants, take precedence. Thus, clinicians too, when aiding in the administration of justice, must temper their actions by recognizing the principle of respect for the persons they evaluate. This means being honest with evaluees about the purpose of the evaluation, even when deception might lead to a more accurate assessment of the situation. The principle of respect for persons also enjoins forensic clinicians from breach of confidentiality of the evaluation, with disclosures limited to advancing the purpose for which the evaluation was conducted. This principle includes refraining from traumatic or abusive techniques in examination.

c. Other principles. Clinicians sometimes wonder whether they may have residual duties of beneficence or nonmaleficence toward subjects of their evaluations that flow from their medical or other professional roles. To avoid confusion in the forensic setting, it is probably best to acknowledge clearly that it is governed by a different set of principles than clinical treatment. This does not mean, however, that a forensic evaluator cannot act to benefit the evaluee (e.g., by identifying a previously undiagnosed condition); beneficent actions remain praiseworthy. Moreover, like all persons, the forensic clinician remains enjoined from violating the principle of nonmaleficence by inflicting harm gratuitously, unrelated to his forensic function, as noted earlier.


Finally, it should be stressed that the ethical parameters of the forensic evaluator (i.e., a clinician performing an assessment for a legally relevant purpose) are at issue here. When forensic clinicians provide treatment (e.g., in a prison setting), their behavior is properly governed by those principles that apply in the clinical realm. This is an important reason for the same clinician not mixing clinical and forensic roles with a given person (see Suggested Readings, Strasburger et al.).

d. Forensic evaluation and the practice of medicine. The question is sometimes asked whether a psychiatrist who is performing a forensic evaluation is engaging in the practice of medicine. The only possible answer is “yes and no.” Clearly, the psychiatrist is drawing on her medical knowledge to perform the evaluation. To that extent, the forensic role resembles other aspects of medical practice. Licensure boards and professional ethics committees have not been reluctant to sanction psychiatrists for improprieties committed in the course of performing forensic work. On the other hand, the forensic psychiatrist is playing a role different from the usual function of the physician; she is advancing the interests of justice rather than of health. This difference has been recognized in the common, and in many jurisdictions continuing, practice of courts of admitting testimony from practitioners who are not licensed to practice in that jurisdiction, suggesting that they recognize forensic evaluation and testimony as distinct from the usual practice of medicine (but see Sec. II-A-5-d).

Perhaps the best solution is to conclude that the psychiatrist performing a forensic evaluation is undertaking a function that draws on his expertise but is governed by a separate set of ethical principles from ordinary clinical work.


2. The “Hired Gun” Problem

Most expert witnesses are not hired by the court but by the defense or prosecution in criminal cases and by the plaintiff or the defendant in civil contexts. This frequently leads to confusion in the expert’s mind as to the extent of her obligation to those who are paying her fee. Should the expert try to support the point of view her employer is espousing when the evidence for it is weak to nonexistent? The principle of honesty would suggest not, but that principle does not answer a host of subsidiary questions. How much preparation with the attorney of the side that hired her is legitimate? When confronted in court with evidence that seems to negate the basis for her opinion, how obstinately should the expert stick to her original conclusion? In short, how can the expert avoid being seen as a hired gun who is being paid to express the opinion that would favor her employer’s case?

a. Skills for sale. The problem of testimony biased by financial gain can be alleviated by focusing on exactly what the expert is selling in the bargain struck with an attorney. The honest expert is paid for time spent in offering a set of skills, a way of analyzing the problem, and the means of presenting that analysis in court. He should not be mongering an opinion for sale to the highest bidder and amenable to influence by the power of pecuniary suggestion. The court expects the expert to reach an opinion by an impartial exercise of the relevant skills and to present the opinion with as diligent a regard as possible for the uncertainties inherent in the evaluation process. The clinician’s compensation is, strictly speaking, for the time that it takes to reach a conclusion and to appear in court, not for the vector of the conclusion.

b. The evaluation process. An expert witness who agrees to conduct an evaluation should do so with the explicit understanding that the conclusion may not conform to the outcome desired by the attorney. The expert should always arrange to be paid the same amount for the evaluation (usually depending on the time involved) whether or not the attorney uses it in court. Many experienced expert witnesses believe that payment of a retainer in advance lessens the psychological pressure on them to reach the “right” conclusion, although the poor track record of many attorneys in paying their experts is probably a more persuasive reason to arrange for such a retainer.

With that understanding, the potential expert witness should approach the evaluation by attempting to reach the most accurate assessment possible. Because of the subtle influences on clinicians in these situations to resolve doubts in favor of the side on whose behalf they have been asked to testify, the expert should search assiduously for contradictory evidence and consider it seriously before reaching a conclusion. This often means going beyond the direct assessment of
the individual whose status is in question, seeking evidence from family members, friends, and others who have come into contact with her. When such corroborative evidence is necessary but unavailable, or the attorney refuses to allow the expert to interview other informants, the expert may want to consider withdrawing from the case on the grounds that a truly expert opinion is unattainable.

One description of the expert’s task is to protect the validity of his opinion from attorneys on both sides of the case. The temptation to be swayed in the direction of the retaining attorney is a pull in one direction; the cross-examination attack on the expert by the opposing attorney is a push in the other direction. Both forces threaten the objectivity of the expert’s approach. Thus the expert succeeds, not by a “win,” which has multiple determinants, but by having protected the validity of the opinion throughout.

c. Pretrial preparation. Having performed the evaluation as described, the expert is obligated to convey her findings as precisely as possible to the attorney. This includes noting the basis for the opinion, its strengths and weaknesses, the reasonable opinions that other consultants might reach and those opinions’ strengths and weaknesses, and the confidence with which the expert is able to uphold the opinion in court. If the opinion is not useful to the side for which she was asked to do the examination, her participation may end there. Assuming the attorney agrees that the expert’s unvarnished opinion is of use to her case, however, it is legitimate for the expert and the attorney to rehearse its presentation in detail and for the expert to reveal ways of buttressing her testimony in court. Involved here is a switch from the role of impartial assessor to a position as a pretrial consultant, in preparation for the situation in court in which, once again, the expert assumes the neutral role.

d. Testifying. On arriving on the witness stand, the expert is expected to testify to the truth as he perceives it, regardless of which side called him into court. Of course, that the witness has arrived at this point implies that his opinion fits the expectations of those who are paying his fee. Nonetheless, one should not overstate the certainty of the conclusions one has reached, understate the likelihood that alternative interpretations are correct, or, in the face of new evidence that was previously unavailable to him, resist changing one’s opinion if that seems called for. Hypothetical questions should be answered honestly, when it is possible to answer them, even if doing so would seem to weaken the case he is supporting. The wise attorney recognizes the advantages of this neutral approach to expert testimony: the more independent-minded, reasonable, and open to input the expert appears to be, the more likely it is that his testimony will be respected by a jury.

This approach to the role of the expert, although difficult to fulfill in that it requires several complicated psychological shifts in perceived allegiance, can serve to reduce many of the ethical concerns related to expert testimony. A residuum of difficulty always remains, of course, because of the natural desire to please those with whom one is working, but unless expert testimony is to be discarded altogether on these grounds, this desire must be overcome insofar as possible by constant attention to the possibility of bias that it creates (see Suggested Readings, Gutheil and Simon).

e. Peer review. One of the most useful—if underused—means of monitoring one’s performance and staying on an appropriate ethical keel is to subject one’s testimony to review by a group of peers. Review can be accomplished by informal groups of colleagues, academic departments of psychiatry, or local medical, psychiatric, or other professional organizations. The American Academy of Psychiatry and the Law has offered peer review to members for several decades, with positive reactions as to its educational value (see Suggested Readings, American Psychiatric Association).


3. The Battle of the Experts

Among those mental health professionals who advocate complete abstention from courtroom proceedings, the most common rationale is that the diversity of expert views that can be observed in many cases does nothing but degrade the professions in the eyes of the public. This “battle of the experts” creates the impression, they continue, that expert opinions are for sale to the highest bidder and that there is no common store of knowledge on which any of their opinions rest.

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Oct 13, 2019 | Posted by in PSYCHIATRY | Comments Off on The Clinician in Court
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