Earlier, PsychLaw.net discussed a data-of-the-discipline voir dire which was illustrated by drawing on the Colorado case of D.T. v. N.O.[1] Here is an example of a voir dire based upon exploration of five statements of fact in In re R.W.W.[2] The attorney preparing the voir dire pursuant to her Sixth Amendment right to confront this witness would note that none of these five statements of fact were prefaced with “I’m just spit ballin’ here” or “I don’t know it for a fact, I just know it’s true.”[3] In preparing the voir dire, she would have on hand:
- A transcript of Dr. Geffner’s In re R.W.W. testimony with specific pages marked:
- Oath to tell “… the truth, and nothing but the truth, so help you God.”[4]
- The five illustrative statements of fact in In re R.W.W.[5]
- Appellate records for cases where Dr. Geffner’s opinions were excluded[6]
- American Psychological Association – Policy in Context[7]
- Ethical Principles of Psychologists and Code of Conduct of the APA, with notes marking sections pertaining to: bias[8]; accuracy, fairness, and avoidance of deception[9]; fraud, subterfuge, or intentional misrepresentation of fact; false, deceptive, or fraudulent statements; offering opinions when one has not done an examination[10]; and attacking other experts’ credentials, credibility, good faith.[11]
- Specialty Guidelines for Forensic Psychology of the APA, with notes marking sections pertaining to: bias[12]; accuracy, fairness, and avoidance of deception[13]; offering opinions when one has not done an examination[14]attacking other experts’ credentials, credibility, good faith(
- Black’s Law Dictionary and Webster’s Dictionary with notes marking definitions for words drawn directly from the APA Principles, Standards and Guidelines: Avoid – Deceptive – Deny – False – Fraud – Fraudulent – Impartial – Inaccurate – Misleading – Misrepresentation – Subterfuge – Subvert
- The Montana Statute on Perjury (Mont. Code Ann. 45-7-201)highlighting: “A person commits the offense of perjury if in any official proceeding the person knowingly makes a false statement under oath ….”[15]
The prepared attorney could proceed with the witness as follows:
1.Mark each as a demonstrative exhibit and establish the validity, evidentiary use of and/or admissibility of:
A. Mont. Code Ann. § 45-7-201 – Perjury
B. Appellate records for:
- State v. Nicklasson, 967 S.W.2d 596 (1998)
- Nicklasson Roper, 2005 WL 1005126 (unpublished)
- State v. French, 110 Hawai’i 78, 129 P.3d 581 (2006)
- Beam v. Beam, 130 Hawai’i 346, 310 P.3d 1047 (2010)
- State v. Jacobson, 780 Ariz. Adv. 2017 WL 6523707 (2017)
C. American Psychological Association – Policy in Context[16]
D. Ethical Principles of Psychologists and Code of Conduct (January 2017) of the APA.[17]
E. Specialty Guidelines for Forensic Psychology (January 2013) of the APA.[18]
F. Transcript of Dr. Geffner’s sworn testimony in In re R.W.W.
G. The Parties briefs from In re R.W.W.[19]
H. Findings of Fact and Conclusions of Law by Honorable Brenda Gilbert, Judge of the Sixth District Court of Montana, in In re R.W.W.[20]
I. Black’s Law Dictionary definitions of
Avoid – Deceptive – Deny – False – Fraud – Fraudulent – Impartial – Inaccurate – Misleading – Misrepresentation – Subterfuge – Subvert
J. Webster’s Dictionary definitions of
Avoid – Deceptive – Deny – False – Fraud – Fraudulent – Impartial – Inaccurate – Misleading – Misrepresentation – Subterfuge – Subvert
2. For each of the illustrative statements of fact from In re R.W.W., compare and contrast with Mont. Code Ann. § 45-7-201 “… false statement under oath ….”
A. My testimony has never been excluded.
- State v. Nicklasson, 967 S.W.2d 596 (1998)
- Nicklasson Roper, 2005 WL 1005126 (unpublished)
- State v. French, 110 Hawai’i 78, 129 P.3d 581 (2006)
- Beam v. Beam, 130 Hawai’i 346, 310 P.3d 1047 (2010)
- State v. Jacobson, 780 Ariz. Adv. 2017 WL 6523707 (2017)
B. That was the last case the O’Rourke judge ever heard.
Findings of Fact and Conclusions of Law, in In re R.W.W.
C. That O’Rourke judge was basically forced to resign.
Findings of Fact and Conclusions of Law, in In re R.W.W.
D. The O’Rourke expert was being investigated by the FBI.
Findings of Fact and Conclusions of Law, in In re R.W.W.
E. The American Psychiatric Association repudiated O’Rourke expert
Findings of Fact and Conclusions of Law, in In re R.W.W.
3. For each of the illustrative statements of fact from In re R.W.W. compare and contrast with the Ethical Principles of Psychologists and Code of Conduct (January 2017) of the APA:
Principle D – Justice
Principle C – Integrity
Standard 5.01 – Avoidance of False or Deceptive Statements
Standard 9.01(b) – Bases of Assessment and Persons Not Examined
4. For each of the illustrative statements of fact from In re R.W.W. compare and contrast with Specialty Guidelines for Forensic Psychology (January 2013) of the APA:
Guideline 1.01 – Integrity
Guideline 1.02 – Impartiality and Fairness
Guideline 2.07 – Considering the Impact of Personal Beliefs and Experience
Guideline 11.01 – Accuracy, Fairness and Avoidance of Deception in Public Statements
Guideline 11.05 – Commenting Upon Other Professionals and Participants in Legal Proceedings
5. For each of the illustrative statements of fact from In re R.W.W., compare and contrast with the dictionary definitions of the relevant terms from the APA Principles, Standards and Guidelines
Avoid – Deceptive – Deny – False – Fraud – Fraudulent – Impartial – Inaccurate – Misleading – Misrepresentation – Subterfuge – Subvert
NOTE – Never ask for an explanation. Always ask for agreement with the obvious conclusion, for example:
When you stated [insert statement of fact], you were attempting to avoid an honest and fair description of the facts. Correct?
or
When you stated [insert statement of fact], you were attempting to mislead the court concerning [insert statement of fact]. Correct?
______________________________________________________________________
[1] See supra notes 55 through 71 and accompanying text regarding the voir dire performed in D.T. v. N.O., No. DR 13, (Gunnison County, Colo. Dist. Ct. 2014).
[2] In re R.W.W., 2017 MT 174N, 400 P.3d 230.
[3] Apologies to Bill Maher. See, e.g., Real Time with Bill Maher: I don’t know if for a fact… I just know it’s true (HBO television broadcast Mar. 30, 2019) http://www.real-time-with-bill-maher-blog.com/index/2019/3/30/i-dont-know-it-for-a-facti-just-know-its-true.
[4] See John H Duehr, Montana Judges Deskbook 136 (Montana rev. ed. 2010 (“You do solemnly swear (or affirm, as the case may be) that the evidence you will give in this issue (or matter), pending between ……. and ……., is the truth, and nothing but the truth, so help you God.”
[5] https://courts.mt.gov/Portals/189/lcourt/deskbook/2010_Deskbook.pdf
[6] Wolf Tr., supra note 199, at 28 (regarding testimony never excluded), at 178 (regarding the last case the O’Rourke judge ever heard), at 180 (regarding the O’Rourke expert being investigated by the FBI), at 181 at 180 (regarding the O’Rourke judge being forced to resign).
[7] See, e.g.: State v. Nicklasson, 967 S.W.2d 596, 617 (Mo. 1998) (Trial court properly excluded Geffner’s testimony); Nicklasson v. Roper, No. 03-8001, 2005 WL 1005126, at *9 (W.D. Mo. Apr. 26, 2005) (Geffner’s opinion properly excluded); State v. French, 129 P.3d 581 (Table), 2006 WL 407712, at * 5 (Haw. Feb. 17, 2006) (Geffner precluded from testifying); Beam v. Beam, 310 P.3d 1047 (Table), 2010 WL 4609356, at *8 (Haw. Ct. App. Nov. 15, 2010) (Family court refused to allow Geffner’s testimony); State v. Jacobson, 418 P.3d 960, (Ariz. Ct. App. 2017) (Geffner’s opinion evidence rejected).
[8] Geoffrey M. Reed, Christopher J. McLaughlin & Russ Newman, American Psychological Association policy in context: The development and evaluation of guidelines for professional practice, 57 Am. Psychologist 1041-1047 (2002) (Describing the manner in which standards and guidelines such as the EPPCC and SGFP are developed and their intended application to all psychologists). NOTE: When dealing with psychologist witnesses, it is often necessary to have on hand the relevant state board of psychology statements that the board relies upon the standards and guidelines of the American Psychological Association and in some cases, additional rules promulgated by the specific board, in the evaluation of proper professional behavior by psychologists.
[9] See Ethical Principles & Standards, supra note 47, at D.
[10] See Ethical Principles & Standards, supra note 47, at C, 5.01.
[11] See Specialty Guidelines, supra note 48, at 9.01.
[12] See Ethical Principles & Standards, supra note 47, at C, 5.01.
[13] See Specialty Guidelines, supra note 48, at 1.01, 20.7.
[14] See Specialty Guidelines, supra note 48, at 1.01, 11.01.
[15] See Specialty Guidelines, supra note 48, at 9.03.
[16] mont. code ann. § 45-7-201 (2019) (“A person commits the offense of perjury if in any official proceeding the person knowingly makes a false statement under oath….perjury shall be punished by imprisonment in the state prison for any term not to exceed 10 years or be punished by a fine of not more than $50,000, or both.”) See also Elements of Perjury, United States Department of Justice, Criminal Resource Manual § 1745 (“The first element of a perjury offense is that the defendant must be under oath during his testimony, declaration or certification.”) Id. at § 1746 (“The second essential element of a perjury offense is that the defendant must have made a false statement.”) Id. at § 1747 (“The third element of a perjury offense is proof of specific intent, that is, that the defendant made the false statement with knowledge of its falsity, rather than as a result of confusion, mistake or faulty memory.”) Id. at § 1748 (“The false statement must be material to the proceedings. A false statement is material if it has ‘a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed.’”)
[17] Reed et al., supra note 231. Try to avoid chasing the psychologist around the courtroom to establish that the relevant principles, standards and guidelines are authoritative and must be followed. Instead, refer to code’s introduction: “The Ethical Standards set forth enforceable rules for conduct as psychologists.” Ethical Principles & Standards, supra note 47, at Introduction and Applicability. Also refer to guidelines for forensic work: “These Guidelines apply in all matters in which psychologists provide expertise to judicial, administrative, and educational systems….” Specialty Guidelines, supra note 48, at Introduction.
[18] All psychologists are required to follow. Ethical Principles & Standards, supra note 47, at Introduction and Applicability.
[19] All psychologists are required to follow. Specialty Guidelines, supra note 48, at Introduction.
[20] Wolf Brief, supra note 194; Wolf Reply Brief, supra note 222.