Month: August 2022

French for “to speak the truth,” voir dire is simply a process of preliminary courtroom questioning—be it of citizens to determine if they should and will sit on the jury or witnesses to see if they are competent to testify. Distinct from examinations conducted during a case-in-chief, which gets to the substance of the parties’ dispute, voir dire peers into whether people should be allowed to participate—either to give facts or determine them. 

 

In family law cases, voir dire comes into play when the court must decide to admit or deny expert testimony. Particularly in high-conflict cases, determining issues related to custody, mental health, substance abuse, parental alienation (PA), and patterns of controlling behavior can all be greatly aided by the testimony of a qualified psychological expert. Voir dire is used to determine if this proposed expert testimony is supported by reliable research and methodology and based upon the facts of the case.  

 

We at PsychLaw.net believe that it is critical that an unqualified or unreliable witness is identified before the purported expert is allowed to taint the proceedings.[1] This is because scientific testimony often carries an ‘‘aura of infallibility.’’ Summarizing the literature, one respected commentator writes that “[t]here is virtual unanimity among courts and commentators that evidence perceived by jurors to be ‘scientific’ in nature will have particularly persuasive effect.”[2]

 

Unfortunately, because many attorneys and judges are not sufficiently up to speed on psychological standards, sometimes unreliable testimony is accepted and used to create misinformation regarding PA. This type of testimony has been presented innumerable times in courtrooms across North America to paint innocent parents as monsters and monstrously manipulative parents as saints. Hence, the importance of voir dire. When promptly and properly done, voir dire will reveal any lack of qualifications or reliability, and (hopefully) lead to the expert’s exclusion.[3] 

 

Whether it is referred to as voir dire, a Daubert[4] hearing, or something else, every jurisdiction across North America offers some type of process for evaluating the credibility of a proposed expert, as well as the reliability of their proposed testimony. To explicate voir dire, the author will use the American federal rules.  This will allow the reader to focus on the similarities across states and substitute local rules and case law where appropriate. 

 

What is now known as a Daubert hearing grew out of jurisprudence around Federal Rule of Evidence (FRE) 104(a)[5] that addresses preliminary questions for the court regarding witness qualification and the admissibility of evidence. Daubert identified that, to provide testimony, an expert must have: (1) an opinion that will be helpful to the fact finder in making its determination; (2) a working knowledge of the data of the discipline; and (3) a reliable basis in the knowledge and experience of the subject matter.[6]

 

Perhaps the most frequently overlooked aspect of an expert’s proposed testimony is an examination of their research and methodology. Unfortunately, litigators and judges alike all too often stop their inquiry with an expert’s education and experience—particularly with scientific expertise. This is because of a “general lack of scientific literacy among … lawyers and judges,”[7] and “[b]ecoming scientifically literate should prove to be a continuing challenge to the law.”[8]

Nonetheless, the proffered expert should be challenged to show that their theory, technique, or concept is supported by objective, empirical data[9] before those data are admitted into evidence.[10] In addition to being grounded in an accepted body of learning or experience, the expert must also explain how the particular conclusion is so grounded in the facts of the case.[11] 

Therefore, when scientific expert testimony is offered, the court must determine if it is based on: 

 

(1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts in issue.[12]

 

The Daubert trilogy suggests engaging in a three-stage inquiry to see if the proposed testimony “fits” the evidentiary needs of the court in making its decision: (1) Does the proposed expert possess the kind of background and experience to fit the facts in controversy? (2) Does the proffered opinion provide a reliable application to the facts of the case? and (3) Does the expert employ a valid and reliable method in forming their opinion?[13]

 

 

[1] One of the real problems with waiting until trial is illustrated in these holdings: U.S. v. L.E. Cooke Co., Inc., 991 F.2d 336, 342 (6th Cir. 1993) (The reviewing court ruled that the exclusion of testimony due to the danger of misleading the jury was not a ground for reversal because the opposing party had an opportunity to refute testimony during cross-examination). Singer Co. v. E. I. du Pont de Nemours & Co., 579 F.2d 433, 443 (8th Cir. 1978) (Where the trial court refused to strike expert testimony as unsupported speculation on the ground that it was for the jury to value the worth of the opinion with the assistance of vigorous cross-examination).

1. [2] John William Strong, Language and Logic in Expert Testimony: Limiting Expert Testimony by Restrictions of Function, Reliability, and Form, 71 Or. L. Rev. 349, 367 n. 81 (1992). See, also Neil Vidmar & Regina A. Schuller, Juries and Expert Evidence: Social Framework Testimony, 52 Law & Contemp. Probs., Autumn 1989, at 166. Also see e.g., Commonwealth v. Garcia, 588 A.2d 951 (Pa. 1991), overruled on other grounds by Commonwealth v. Johnson, 690 A.2d 274 (Pa. 1997), overruling on other grounds recognized by Commonwealth v. Minerd, 753 A.2d 225, 232 (Pa. 2000) (instructing that ‘‘[j]urors are human and may be unduly impressed by an expert, his credentials, and ultimately his opinion, ‘even though, upon reflection, they would realize that in the particular field under discussion they are as much at home as the expert.”)

 

[3] Of course, this assumes that the judge understands his jurisdiction’s rules of evidence, which, unfortunately, is not always the case. See e.g. D.T. v. N.O., No. DR 13 (Gunnison County, CO Dist. Ct. 2014) and description of a “data of the discipline” voir dire, infra in this chapter in the subsection “A Three-Step Process to Voir Dire a Proffered Expert in Proceedings Involving Parental Alienation.”

[4] Invoking the pre-eminent American authority in this area, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

[5] Fed. R. Evid. 104(a).

[6] Daubert, 509 U.S. at 589-92.

[7] See, e.g., John Thibaut & Laurens Walker, A Theory of Procedure, 66 Calif. L. Rev. 541 (1978) [hereinafter Thibaut (1978)] See also E. Allan Lind & Tom R. Tyler, The Social Psychology of Procedural Justice (1988). John Thibaut & Laurens Walker, Procedural Justice: A. Psychological Analysis (1975) [hereinafter Thibaut (1975)].

[8] David Faigman et al., Check your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying About the Future of Scientific Evidence, 15 Cardozo L. Rev. 1799 (1994). Demosthenes Lorandos, Expert Evidence Post-Daubert: The Good, the Bad, and the Ugly, 43 Litigation, Mar. 2017, 7 (2017).

[9] Glaser v. Thompson Med. Co., 32 F.3d 969, 974-975 (6th Cir. 1994).

[10] See, e.g., Thibaut (1978), supra note 7; Lind et al., supra note 7; Thibaut (1975), supra note 7.

1. [11] See, e.g., American College of Trial Lawyers, Standards and Procedures for Determining the Admissibility of Expert Testimony after Daubert, 157 F.R.D. 571, 579 (1994) (“Whether the testimony concerns economic principles, accounting standards, property valuation or other non-scientific subjects, it should be evaluated by reference to the ‘knowledge and experience’ of that particular field.”).

 

[12] Daubert., 509 U.S. at 592-93.

[13] See, e.g., Terence W. Campbell & Demosthenes Lorandos, 1 Cross Examining Experts in the Behavioral Sciences §§ 1:12, 1:28 (2001 & Supp. 2019). And see Schmaltz v. Norfolk & Western Ry. Co., 878 F. Supp. 1119,1121 (N.D. Ill. 1995) (where the court noted that the suggested scientific testimony must ‘‘fit’’ the issue about which the expert is testifying); In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 742 (3d Cir. 1994) (noting admissibility depends in part on the proffered connection between the scientific research or test result to be presented and particular disputed factual issues in the case, i.e. the ‘‘fit’’ requirement), cert. denied, 513 U.S. 1190 (1995).

Here we at PsychLaw.net have looked at three more cases involving mother as the target parent.

1. v. J., 2010 – Ontario –

In this case, the parties were married in 1991. It was a first marriage for both. They had two boys C age 15 and M age 9 at the time of trial. Both parents agreed that C suffered from attention deficit hyperactivity disorder (ADHD) and obsessive compulsive disorder (OCD) and that M had a learning disability. Both parents remained in home where court testimony indicated the father sabotaged mother’s disciplining of the children; broke into mother’s room; called mother names; swore at and threatened mother; turned off power and cable; walked around in a towel and exposed himself.  Records also documented that the father spoke to his own mother about blowing up the house.  There was evidence of self-mutilation in the oldest child C (i.e. carving his initials into his skin). 

Court records indicated that the father had a personality disorder and was modeling unhealthy behaviors that had influenced the children.  Extended exposure to these behaviors in the father was seen as having long-term negative impact.  Court records document that the experts thought that tasking father with day-to-day parenting would stress him and could trigger an explosive reaction.

The court found that the father demonstrated many alienating behaviors.  He called mother names in front of the boys and they then mimicked him; and he undermined mother’s efforts to impose bedtimes and discipline.  Further, the court found that the father tried to paint himself as the victim in his voice mail messages and in his own diary entries.  The court determined that the father undermined the mother’s attempts to discipline C when he assaulted her and the father sabotaged mother’s summer access as well. He allowed C to evade schoolwork by permitting him to come to his house. He did not follow up with the schools to verify mother’s claims that C was simply avoiding work.  Result, custody to target parent mother. 

1. (I.M.M.) v. S. (D.J.), 2010 – British Columbia –

This case involved a serious and ongoing lack of cooperation and active parental alienation.  This lack of cooperation by the father was demonstrated by difficulties in planning for the scheduling of vacations and extra-curricular activities for the children during the school year and many other alienating and undercutting behaviors as well. 

 

Court assessor Brown had 30 years of experience according to the court and was a highly experienced, professional registered clinical counselor. Ms. Brown reported to the court that this couple could not work cooperatively together to parent the children and that the father would continue to behave so as to alienate his sons from their mother. Ms. Brown strongly recommended that the father participate in counseling to help him deal with his anger in relation to the mother. The court noted that assessor Brown saw aspects of the father’s behavior as both an active and an obsessive alienator.  She determined that he was strongly influencing his sons to his way of thinking by portraying himself as a “victim of their mother’s greed.”

The court determined it was clear on the evidence that the father manifested entrenched behaviors that were likely to seriously damage or even destroy the children’s relationship with the mother. The court determined that despite the various difficulties mother encountered in trying to parent with the father, she persisted in a calm and committed way, as she firmly believed it was in the children’s best interests for them to have a relationship with their father. In contrast, the father told the children that upon reaching the age of 12 years, they may choose which parent they wish to reside with and continue to undercut the mother. Further, the father refused to pay an outstanding order concerning his share of special expenses, and did not move with any dispatch to comply with the orders of the court regarding property division. The trial judge cited significant case precedent and vested custody in the target parent mother.

1. v. S., 2010 – Ontario –

This case found experts describing the consequences of parental alienation in stark terms. Court records document that Jacqueline Vanbetlehem, MSW, and Ted Horowitz (Ph.D. in social work) agreed that the children had been heavily influenced by the father to have unrealistic and unjustified negative feelings toward the mother. Despite the father’s repeated attempts to get the experts to agree that the children were justified or at least reasonable in rejecting the mother, both experts regarded the father’s active alienation as by far the more pressing problem. Both witnesses described the long-term serious effects of unresolved alienation in children when they become adults.  According to the two experts in this case, alienated children have significantly higher rates of mental and emotional problems, substance abuse or addiction and marriage or relationship breakdown than children who have a relationship with both their parents.  

The trial judge offered that it was interesting to hear the father’s submissions, which bore out what the mother and the two expert witnesses had said. Barely a minute into his testimony wrote the trial judge, the father veered sharply from addressing what arrangements would be in the best interests of the boys to talk extensively, about how the mother had betrayed him and the family by acting independently as soon as she began earning a significant income.  The father insisted that the mother began neglecting him and the children, abandoning them and forming a new relationship, all in the interest of money. His bitterness was palpable, wrote the court. He accused her of stealing the wealth of the family away from him, in terms similar to those the children repeated to the mother and the two expert witnesses. He also questioned the mother’s willingness and even her intellectual capacity to recognize the needs of the children and make any changes necessary to meet them.  After hearing all of the testimony and reviewing the reports of the experts, the court ruled that both children would reside with the target parent mother.  The father’s access to each of the children was suspended.

Matter of P., 1995 – Tennessee

In this case we at PsychLaw.net researched a child who was born out of wedlock during a time when the parties were living together. The father originally denied paternity but the child was ultimately legitimated, at the age of two, after results of blood tests. The conflicts and discord in the case were longstanding and, despite the efforts of many participants, showed very few, if any, signs of improvement. 

In 1991, the mother was undergoing physical, emotional, and financial difficulties. In light of these problems, she agreed that the father could have custody of their son and a consent order was entered.  Father’s refusal to enter counseling, his continued frustration of the mother’s visitation, and intimidation of the mother, CASA, and school personnel brought about a re-evaluation. Father then based his claim of better comparative fitness on the fact that mother was a lesbian and lived with her lesbian partner.  The trial judge believed that underlying father’s behavior was his hostility at mother’s admission that she was a lesbian. The issue was not formally raised until just before the trial and there was never any allegation of inappropriate conduct or behavior by mother or her partner.  On the contrary, the Center for Children in Crisis found mother’s partner to be the more mature of the adults in the boy’s life and the father of the mother’s two other children, testified that mother was a good mother, his children were well adjusted and that his relationship with his children was quite good.

 The record revealed that the alienating father here was unable to see how his behavior affected his son. He refused to address the child’s difficulties in school, lack of peer friendships; he demonstrated an unwillingness to follow court orders regarding visitations, counseling and continued to make negative commentary regarding the mother in a manner that caused the child to choose sides.  The reports of CASA and the guardian ad litem contained factual details of the father’s personality and behavioral disorder as diagnosed by Center for Children in Crisis. Father’s only affirmative response to these issues was an attempt to leave the jurisdiction of the court.  The record demonstrated that the mother made considerable progress in improving her physical and mental condition and regained the ability to care for her son. The court ruled that there were changed circumstances that warranted a revision in custody arrangements and the appellate court affirmed a change to target parent mother.

1. v. M., 2001 – Vermont

 

In this case, the Supreme Court of Vermont dealt with a cultural clash over parental alienation and religion.   In this case, father and mother had two daughters together.  At the time of their divorce in 1995, father and mother stipulated to joint parental rights and responsibilities for the girls. There was extensive cooperation on issues regarding the girls immediately following the divorce, including shared access to one another’s homes, the exchange and transport of the children’s belongings between the two homes, frequent and open communication between mother and father without limitation, joint parent-teacher meetings, and flexibility about time and contact with each parent. There was a significant change for the worse starting in the latter half of 1996.  By June 1999, mother moved to modify the parties’ original divorce decree, seeking both sole legal and sole physical rights and responsibilities for the children. The mother told the court that the changes included father prohibiting the girls from contacting her while they were in his care, prohibiting her from entering his home, and refusing to communicate with her except in writing. Mother testified to symptoms of anxiety in both girls including nightmares, stomach aches, and a constricted throat; the younger girl being very clingy and sucking her thumb.  The mother explained the changes as coincidental to the father’s deepening involvement with the Jehovah’s Witness religion. 

The father argued that the portion of the court’s order providing that he not bring the girls to any Jehovah’s Witness religious gatherings or attempt to raise the girls as Jehovah’s Witnesses was unconstitutional. The record and legal argument on this point was extensive.  The Vermont Supreme Court reasoned that their trial courts may take into account a parent’s religious practices when making a custodial determination if there is evidence that the practices have a direct and negative impact on a child’s physical or mental health. In this case, noted the court, the mother presented extensive evidence that the conflicting practices and rules in each household that stemmed from her and the father’s disparate religious beliefs were causing the children to experience extreme confusion and anxiety.

The trial court made specific findings regarding the negative effects on the children of mother’s and father’s differing sets of beliefs, including the children’s feelings of disloyalty, guilt, confusion, and anxiety. Thus, not only was evidence of harm presented, but the trial court made specific findings that the conflicting beliefs and practices in each household were having a palpable negative impact on the children, and would continue to do so.  The Vermont Supreme Court upheld the trial court’s prohibition.  Additionally, there was extensive evidence in the record of father attempting to alienate the girls from mother that independently supported the court’s disposition in the case. Father refused to communicate with her in person on repeated occasions in front of the children.  There was testimony about the father refusing to answer the door for her, refusing to roll down the car window while she attempted to talk to him at an exchange of the children, communicating to her through the stepmother while he stood by silently during exchanges, and hanging up the phone on her.  For the reasons cited, custody was awarded to the target parent mother.