Author: Shawn Wygant

When Voir Dire Goes Right

Posted on by Shawn Wygant

At PsychLaw, we frequently discuss how to voir dire experts in the behavioral sciences. Voir dire challenges are necessary to keep pseudo science out of our courtrooms. When voir dire goes right, a court will strike the pseudo science. For instance, in Holman Enterprises v. Fidelity and Guar. Ins. Co.,[1] the district court granted a party’s motion to strike the report of an expert where the expert’s report was “replete with legal conclusions and speculations,” “obvious conclusion[s] of law,” “fail[ed] to even discuss the insurance industry’s basic definition,” “provided no analysis to support … blanket conclusions,” and ultimately failed to meet the Daubert standard.[2]

In Hall v. United Ins. Co. of America, the opinion of a “licensed professional counselor,” purporting to evaluate the competency of a person he never met, but solely on a review of documents, was struck by an Alabama federal court for failing to meet the requirements of Rule 702[3]. In affirming the decision, the Eleventh Circuit noted:

Petrella’s “expert” opinion was based on his review of several documents related to Bobby’s mental health …. While Bobby’s medical doctor concluded that he was competent, Petrella came to the opposite conclusion, with no explanation offered in his affidavit for this contrary result. The district court concluded that [the plaintiff] had not demonstrated that the information Petrella reviewed contained sufficient facts or data upon which to base his opinion … and that Petrella did not cite to any scientific methodology or literature supporting his conclusions or approving of the method he employed to make those conclusions. … Accordingly, the judgment of the district court is affirmed.[4]

At PsychLaw.net we know that the legal profession, writ large, has an apparent aversion to “science,”[5] perhaps born out of what Justice Breyer described as a “lack the scientific training that might facilitate the evaluation of scientific claims or the evaluation of expert witnesses who make such claims.”[6] As noted above, too often attorneys and courts rely simply on the professional’s recitation of their expertise and the perception that their field’s governing body would police any unethical or unprofessional conduct. Unfortunately, governing bodies frequently fail to discipline an unethical or unprofessional colleague. Certainly, this is the case with the psychological profession, where purported expert testimony that fails to meet the American Psychological Association’s (APA’s) ethical standards and practice guidelines routinely goes unpunished.

[1] Holman Enterprises v. Fidelity and Guar. Ins. Co., 563 F.Supp.2d 467 (D.N.J. 2008).

[2] Id. at 472-73.

[3] Hall v. United Ins. Co. of America, 367 F.3d 1255, 1261 (11th Cir. 2004).

[4] Id. at 1261-62.

[5] Lorandos, supra note 8. Moreover, the majority of this misleading, unreliable and highly damaging inexpert testimony is introduced by prosecutors, who, as a group, enjoy near carte blanche when seeking to admit any scientific expert; according to a 2010 study, a whopping 95.8% of proffered prosecution experts were admitted, compared with only 7.8% of those offered by criminal defendants. Id.

[6] Stephen Breyer, Science in the Courtroom, 16 Issues in Sci. & Tech. 52, 53 (2000). Lorandos, supra note 8, at 4-5.

Admissibility of the Construct of PA

Posted on by Shawn Wygant

At PsychLaw.net we know that there is a lot of misinformation about PA and PAS which leads to ignorance in the topic of discussion.

Misinformation:  “There has never been a precedent setting case establishing parental alienation.”[1]

More than one thousand cases addressing PA were found for the research described in Chapter 9, “Parental Alienation in U.S. Courts, 1985–2018,” and 20 particularly illustrative cases are described in detail in the associated Appendix.

Misinformation:  There is insufficient peer-reviewed literature to support parental alienation.[2]

Citations to over 1,000 treatises relevant to the construct–PA are available to all on Vanderbilt University’s Center for Knowledge Management database. Extensive, peer-reviewed research is addressed in Chapter 5, “Parental Alienation and Empirical Research.”

Misinformation: Alienating manipulation by one parent is not child abuse, and alienating parents have a right to disparage the other parent[3].

Curiously, Hoult states that constitutionally-protected free speech rights protect parents who can say whatever they wish about other parents.  But—

In reply, severe parental alienation is child abuse.

When an alienating parent establishes a pattern of mental, emotional and/or physical exploitation of their child, that is child abuse.[4] This is true even though the target is the other parent, because, according to the American Professional Society on the Abuse of Children (APSAC), alienating methods result in a failure to address the child’s basic psychological needs, “undermin[e] the child’s important relationships, and change, for the worse, the way the child thinks and feels about himself and his target parent.”[5]

The criterion for child psychological abuse, set out in the DSM-5, is “nonaccidental verbal or symbolic acts by a child’s parent or caregiver that result, or have reasonable potential to result, in significant psychological harm to the child.”[6] Clearly, the construct–PA meets this criterion[7]. Moreover, even if the child is not directly attacked, she may still suffer as a “child affected by parental relationship distress (CAPRD),” another diagnosis within the DSM-5.[8] And when the CAPRD diagnosis category was addressed in the DSM-5, the construct–PA was explicitly in mind for the creators of that section.[9]

Children who suffer from PA manifest a number of adverse conditions and characteristics, including posttraumatic stress disorder, adjustment disorder, shorter lifespans, depression, withdrawal, anxiety, low self-esteem, aggression, substance abuse, poor academic performance, neurological damage, poor physical health, and developmental delays[10]. Of the 40 people examined by Baker in her early study of adult survivors of PA, 14 reported substance abuse, 28 had some experience with depression, 23 were divorced, and 14 were alienated from their children themselves.[11]

In reply, the First Amendment does not countenance alienating parents.

Hoult’s reliance on the First Amendment for the proposition that “divorced women” have a right to “express negative opinions about their ex-husbands,” including “release of anger with scapegoatism” in front of their children, demonstrates a remarkable ignorance of First Amendment jurisprudence.[12]

“[T]he privileges afforded by the First Amendment are not absolute.”[13] This right must be “applied in light of the special characteristics of the relevant environment.”[14] Thus, courts may order parties not to discuss certain matters, even though this is a disfavored “prior restraint,” where “the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest.”[15] A parent’s “constitutionally protected” right to the “custody, care and nurture of the child” presents such a competing interest.[16]

So, too, is the protection of minor children. In a case discussed in Chapter 9, “Parental Alienation in U.S. Courts, 1985–2018,” In re Marriage of Patterson, the Montana Supreme Court affirmed the trial court’s order that “punished [an alienating father] for his social media posts, and by curtailing future posts” about mother:

A state may sometimes curtail speech … when necessary to advance a significant and legitimate state interest. Here there is a compelling interest in protecting the minor children from being exposed to the adult matters involved in this litigation, especially Josh’s continual denigration of the children’s mother.[17]

In addition, “the First Amendment [does] not guarantee the right to raise children as one parent sees fit.[18]” Moreover, a parent does not have “an absolute right to express her beliefs and opinions to her children,” free from the State’s “judg[ment of] the content of this speech.[19]” Rather, the State has a “compelling interest in a child’s welfare [that] often takes priority over the personal rights of a parent …. What rights [a parent] had to express her paranoid delusions to her children are surpassed by the State’s interest in protecting the children from psychological damage.”[20]

[1] Hoult, supra note 136, at 67:40.

[2] Hoult, supra note 136, at 72:00.

[3] Hoult, supra note 136, at 7:23-7:32; 47:20; 55:30.

[4] Jennifer J. Harman, Edward Kruk & Denise A. Hines, Parental Alienating Behaviors: An Unacknowledged Form of Family Violence. 144 PSYCHOL. BULL. (12) 1275-1299 (2018).

[5] AMERICAN PROFESSIONAL SOCIETY ON THE ABUSE OF CHILDREN, PRACTICE GUIDELINES ON THE INVESTIGATION AND DETERMINATION OF SUSPECTED PSYCHOLOGICAL MALTREATMENT OF CHILDREN AND ADOLESCENTS 4 (2017)

[6] DSM-5, supra note 37.

[7] Kathleen M. Reay, Family reflections: A promising therapeutic program designed to treat

severely alienated children and their family system. AM. J. OF FAM. THERAPY 197-207 (2015).

[8]Bernet et al., supra note 37. Harman, et al., supra note 224, sat 1277.

[9] Bernet et al., supra note 37.

[10] Harman, et al., supra note 224.

[11] AMY J. L. BAKER, ADULT CHILDREN OF PARENTAL ALIENATION SYNDROME: BREAKING THE TIES THAT BIND 9 (W.W. Norton & Company 2007).

[12] Hoult, supra note 110, at 7.

[13]Preminger v. Peake, 552 F.3d 757, 764 (9th Cir. 2008).

[14] U.S. v. Brown, 218 F.3d 415, 424 (5th Cir. 2000).

[15]  Id. at 424. See also N.L.R.B. v. World Evangelism, Inc., 656 F.2d 1349, 1354 (9th Cir. 1981).

[16] H.L. v. Matheson, 450 U.S. 398, 410 (1981)

[17] In re Marriage of Patterson, 2017 MT 231N, ¶ 9.

[18] Thomas v. Thomas, 991 P.2d 7, 12 (N.M. Ct. App. 1999) (holding a custody modification

granting husband primary custody did not deprive wife of the right).

[19] In re Dependence of Chubb, 773 P.2d 851, 855 (Wash. 1989) (where mother asserted the First Amendment protected her expressing her schizophrenic delusions to her child, such that her parental rights should be terminated).

[20]  Id. at 856.

 

Book Release: Parental Alienation – Science and Law

Posted on by Shawn Wygant

BOOK RELEASE: PARENTAL ALIENATION – SCIENCE AND LAW

By Demosthenes Lorandos & William Bernet

ORDER >> https://www.ccthomas.com/details.cfm?P_ISBN13=9780398093242

“Parental Alienation – Science and Law explains the research that creates the foundation for the assessment, identification, and intervention in cases of parental alienation (PA). For attorneys, judges, and family law professionals, this book explains in detail the scientific basis for testimony and legal decisions that relate to PA. There are two complementary features for most of the chapters. First, the chapter authors address how evidence regarding PA meets the criteria of the Frye, Daubert, and Mohan cases as well as the Federal Rules of Evidence for testimony by experts. The second feature is to refute common misinformation. There is debate and disagreement about some aspects of PA theory. The editors of this book are concerned that some of the discourse regarding PA has spun out of control, into pervasive misinformation. This book provides plenty of evidence for overcoming that hurdle. The editors of this book and the chapter authors have extensive experience with both clinical and legal aspects of divorce, child custody, parenting time evaluations, PA, and related topics. The editors and chapter authors include six psychologists, three physicians, two social workers, four attorneys, and one judge. Collectively, these mental health professionals have testified as expert witnesses hundreds of times regarding family law topics. As an additional feature, the book contains four appendices and three indexes. Appendix A defines the concepts used in this book, so that the chapter authors and readers will use terminology in a consistent manner. Appendix B lists more than one thousand trial and appellate cases in the U.S. involving PA, organized by state. Appendix C presents twenty rather dramatic vignettes involving PA. Finally, Appendix D, “Sample Motion and Brief for Extended Voir Dire,” provides a motion and supporting brief asking the court to allow extended time to examine the competency of a proposed expert.”

Table of Contents

Preface

Section One: Clinical Considerations and Research

1. Introduction to Parental Alienation

2. The Psychosocial Assessment of Contact Refusal

3. Parental Alienating Behaviors

4. Parental Alienation: How to Prevent, Manage, and Remedy It

5. Parental Alienation and Empirical Research

6. Recognition of Parental Alienation by Professional Organizations

Section Two: Legal Issues

7. Alienating Behaviors and the Law

8. Admissibility of the Construct–Parental Alienation

9. Parental Alienation in U.S. Courts, 1985 to 2018

10. The Importance of Voir Dire in High-Conflict Family Law Cases

11. Parental Alienation: An International Perspective

12. Tips for Expert Testimony

13. Public Policy Initiatives Related to Parental Alienation

Appendices

A. Parental Alienation Terminology and Definitions

B. Parental Alienation in U.S. Courts, 1985 to 2018

C. Cases Illustrative of Alienating Behaviors

D. Sample Motion and Brief for Extended Voir Dire

Name Index

Subject Index

List of Cases Index

#parentalalienation #familylaw #science #childabuse #familyviolence

The Construct of Parental Alienation

Posted on by Shawn Wygant

PsychLaw.net’s researchers know that two hundred fifteen years ago, the first recorded case resembling parental alienation (PA) was fought out in the courts of England.[1] In the last two centuries, English-speaking jurists have grappled with parents alienating, brainwashing, kidnapping, and manipulating their children in thousands of cases.[2] Child psychiatrist Richard Gardner published his first formulation of a parental alienation syndrome (PAS) in 1985.[3]  A prolific advocate for children, Gardner wrote 41 books and more than 200 professional journal articles and book chapters.[4]   When the American Psychological Association published Guidelines for Child Custody Evaluations in Divorce Proceedings in 1994, Gardner was cited more than any other single authority in the “Pertinent Literature” section.[5]  In the recent text published by the American Bar Association—Children Held Hostage: Identifying Brainwashed Children, Presenting a Case, and Crafting Solutions—33% of the citations in the bibliography have “parental alienation,” “parental alienation syndrome,” or “alienation” in their titles; in the same bibliography, Richard Gardner’s work is cited twenty-three times.[6] Since Gardner’s numerous contributions, there have been hundreds of peer-reviewed articles, chapters in scholarly books, presentations at professional meetings, and legal treatises on PA.[7]

But wait.  A meme[8] has developed that PA does not exist.  In contrast to the extensive scientific and legal literature regarding PA, there has been a number of published articles and book chapters criticizing the concept of PA and even denying the reality of PA.  On the one hand we find more than two hundred years of English language jurisprudence concerning alienation;[9] hundreds of published, peer-reviewed articles concerning alienation describing both qualitative and quantitative data;[10] scores of books by parents and legal and behavioral sciences professionals discussing the phenomenon; as well as chapters in scholarly books, lectures, and legal treatises on the subject.[11]  On the other hand, in the twenty-five years between 1994 and 2018, we find Notes, bar journal and law review articles, lectures, newspaper stories, and websites where law students, attorneys, law professors, and ex-lawyers write about PA and science.  In this twenty-five-year period we also find social workers, psychologists, and a nurse writing about PA and evidence law.[12]  How do we reconcile the extensive literature for and against the concept of PA?  One way to do that is to look at the legal opinions of thousands of courts regarding this topic.

In the upcoming blog posts series, PsychLaw.net will discuss what trial and appellate courts in the United States say about PA.

[1] King v. De Manneville, 5 East 221, 102 Eng. Rep. 1054 (K.B. 1804). And see Shelley v. Westbrook, 37 Eng. Rep. 850 (Ch. 1817). Earl of Westmeath v. Countess of Westmeath, 162 Eng. Rep. 992 (1826). In re Barry, 42 F. 113 (S.D.N.Y. 1844). In re Burrus, 136 U.S. 586 (1890). For a fuller explication of the history, see Chapter 7, “Alienating Behaviors and the Law.”

[2]  See Chapter 1, “Introduction to Parental Alienation” (alienating), Stanley S. Clawar & Brynne Rivlin, Children Held Hostage: Dealing with Programmed and Brainwashed Children (American Bar Association 1991) and Stanley S. Clawar & Brynne Rivlin, Children Held Hostage: Identifying Brainwashed Children, Presenting a Case, and Crafting Solutions 475-507 (2d ed. 2013)[hereinafter Clawar & Rivlin (2013)] (brainwashing). The International Handbook of Parental Alienation Syndrome 158, 169, 433-437 (Richard A. Gardner et al. eds. 2006) (kidnapping) American Professional Society on the Abuse of Children, Practice Guidelines on The Investigation and Determination of Suspected Psychological Maltreatment of Children and Adolescents (2017) (manipulating).

[3] Richard A. Gardner, Recent trends in divorce and custody litigation, 29 Academy F., Fall 1985, at 3-7. Richard A. Gardner, Paper presented for the Ninth Annual Herschfeld Lecture, The parental alienation syndrome (June 11, 1986). Richard A. Gardner, The parental alienation syndrome and the differentiation between fabricated and genuine child sex abuse (1987).

[4]  See, e.g., The Gardner Library, Dr. Richard A. Warshak https://www.warshak.com/resources/gardner.html (last visited May 5, 2019).

[5] American Psychological Association, Guidelines for Child Custody Evaluations in Divorce Proceedings, 49 Am. Psychol. 677, 677-680 (1994).

[6]  Clawar & Rivlin (2013), supra note 2.

[7] Parental Alienation Database, Center for Knowledge Management Vanderbilt University Medical Center, https://www.mc.vanderbilt.edu/pasg (last visited May 21, 2019). [hereinafter PA Database] (Under the auspices of the nonprofit Parental Alienation Study Group, the Vanderbilt University Center for Knowledge Management has digitized a bibliography. “This database contains more than 1,000 books, book chapters, and articles published in mental health or legal professional journals. Most of these references pertain directly to parental alienation and parental alienation syndrome; some of the references pertain to a closely related topic such as divorce, child custody, parenting time, or sexual abuse.  Newspaper and magazine articles and unpublished presentations at professional meetings are not included, unless they are unusually important.”)

[8] See Chapter 1, “Introduction to Parental Alienation.” (“A meme is a concept, image, catchphrase, or piece of media which spreads from person to person via social networks, news sources, or professional journals.  Similar to a fad or craze, the meme takes on a life of its own.”). Also see Olivia Solon, Richard Dawkins on the internet’s hijacking of the word ‘meme,’ Wired UK (Thursday 20 June 2013), https://www.wired.co.uk/article/richard-dawkins-memes (last visited May 25, 2019) (“Richard Dawkins coined the word ‘meme’ in his 1976 bestseller The Selfish Gene. The word—which is ascribed to an idea, behaviour or style that spreads from person to person within a culture—has since been reappropriated by the internet ….”).

[9] See Chapter 7, “Alienating Behaviors and the Law.”

[10] See Chapter 5, “Parental Alienation and Empirical Research.”

[11] See PA Database, supra note 7.

[12]  See Chapter 8, “Admissibility of the Construct – Parental Alienation.”

The Construct of PA

Posted on by Shawn Wygant

At PsychLaw.net we know that parental alienation (PA) is widely accepted by both mental health and legal professionals; however, a handful of authors in legal and social science publications deny the existence and/or reliability of PA as a meaningful construct. Accordingly, these few PA detractors claim that expert testimony about PA should not be admissible in North American courts, and they make specious arguments in support of this assertion. Like many deceptive arguments, absent a close reading with a complete understanding of the construct–PA, some are deceived. These blogs will examine the criteria for the admission of expert testimony, how PA meets these criteria and then outlines (and refutes) the misinformation about PA’s admissibility.

In this blog we will be discussing the legal criteria for admissibility of expert evidence. “The Importance of Voir Dire in High-Conflict Family Law Cases,” addresses in detail the standards for the admissibility of expert evidence in the U.S., so they will be addressed only briefly here.

We at PsychLaw.net understand that all relevant evidence is admitted[1] unless:  [I]ts probative value is substantially outweighed by a danger of … unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.[2]” Evidence is relevant if it: “(a) has a tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.[3]”

The admission of expert evidence is governed by, in addition to those for relevance, further considerations because of the “wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation” that an expert enjoys.[4] It is important to note that this same “latitude” is not granted to ordinary witnesses, who must restrict their opinion testimony to those matters that the witness rationally perceived, and bear upon his or her testimony or a fact in issue.[5]

At PsychLaw.net we teach that to have expert evidence admitted, the proffering party must first present the expert either to the court in its case-in-chief or in a preliminary hearing (variously called a 104, 403, or 702 hearing or voir dire). In either situation, a similar order of examination will occur: (1) the proponent examines the witness in direct examination; (2) the opposing party examines the witness in cross-examination; and (3) the proponent follows up in re-direct examination.

If the expert is examined in a preliminary hearing and fails to establish that the testimony is useful and reliable, the evidence is not admitted to the proceedings. On the other hand, if the expert is first examined while the proceedings are ongoing and then it is revealed the evidence is not useful or unreliable, while the evidence has technically been “admitted,” the court will give it little or no weight.

[1] Fed. R. Evid. 402.

[2] Fed. R. Evid. 403.

[3] Fed. R. Evid. 401.

[4] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993).

[5] Fed. R. Evid. 701.

Overview of the Rorschach

Posted on by Shawn Wygant

Irving Weiner, who has written extensively regarding the Rorschach, contends that it endures unwarranted criticism.  Weiner insists:  

“Current literature reflects a persistent inclination in some quarters to denigrate the Rorschach Inkblot Method as an invalid and useless instrument for assessing personality functioning.  Although perhaps warranted to some extent in years past, such harsh criticism of the Rorschach runs counter to abundant contemporary data demonstrating its psychometric soundness and practical utility.”i 

 

There are some data demonstrating the Rorschach’s psychometric soundness.  A 1999 study, for example, found that the validity coefficients of the Rorschach and the MMPI2 are approximately equal. ii  These data, however, do not necessarily support Weiner’s claims of “practical utility” for the Rorschach.  The 1999 study reviewed Rorschach data obtained from studies published in peerreviewed journals.  As we at PsychLaw.net pointed out in prior sections, without satisfactory levels of interrater scoring consistency, peerreviewed journals will not publish Rorschach research.   

Research teams working diligently to achieve satisfactory levels of Rorschach scoring consistency can succeed in doing so.  Extrapolating from these data to how practicing psychologists score and interpret the Rorschach is illadvised.  As we at PsychLaw.net also pointed out in prior sections of this Blog, it is necessary to discriminate between the “research” utility of the Rorschach, and its “field” utility.  Compared to research psychologists, practicing psychologists typically do not have sufficient time available to hone their Rorschach scoring skills. We at PsychLaw.net feel that consequently, the “field utility” of the Rorschach most certainly does not even approximate its “research utility.”  Claiming otherwise is tantamount to the first author contending that because we use the same make of clubs, his golfing prowess equals that of Tiger Woods! 

Psychologists using the Rorschach may claim that their specialized training with this technique allows them to administer, score, and interpret it accurately.  Supporting these claims would necessitate training that uses a criterion level for certifying Rorschach competence.  A criterion level would define how sample Rorschach responses should be scored and interpreted.  After reaching a predetermined level of scoring and interpretive accuracy, a psychologist could claim Rorschach competence.  To the best of our knowledge, there are no Rorschach training programs designed to bring trainees to a defined level of accuracy.  Claims of accuracy for scoring and interpreting therefore amount to totally unsubstantiated claims. 

CrossExamining the Clinical Use of the Rorschach 

  1. You claim that there are numerous studies published inpeerreviewed journals supporting your use of the Rorschach  Correct? 
  2. Without satisfactory levels of interrater scoring consistency,peerreviewed journals will not publish Rorschach research  Correct? 
  3. And we know that research teams working diligently to obtain satisfactory levels of Rorschach scoring consistency can succeed in doingso  Correct? 
  4. Compared to the research psychologists who publish Rorschach data, practicing psychologists do not have the time available to hone their Rorschach scoringskills  Correct? 

[THE FOLLOWING QUESTIONS ARE TAKEN FROM PRIOR SECTIONS] 

  1. The psychologists participating in Rorschach research studies underwent specialized training to reach acceptable levels of interrater scoringconsistency  Correct? 
  2. What specialized training have you undergone to assist you in scoring the Rorschach in an acceptable manner? 

[The vast majority of psychologists have not undertaken this kind of training.   

Prior to crossexamination, check the psychologist’s c.v. for postdoctoral  

training in the Rorschach] 

  1. And the“field reliability” of the Rorschach refers to how practicing psychologists such as yourself use it  Correct? 
  2. You cannot cite any data published in apeerreviewed journal reporting the field reliability for the TRACS  Correct?   [or whatever other system the professional used]. 
  3. In other words, the extent to which practicing psychologists carefully comply with the TRACS scoring procedures [or any other scoring procedure] remainsunknown  Correct? 
  4. If the extent to which practicing psychologists carefully comply with the TRACS scoring procedure remains unknown, we do not know how carefully you complied with that scoringprocedure  Correct? 
  5. And if you resorted to your own idiosyncratic scoring method, your interpretations of the Rorschach in this case could differ from anotherprofessional  Correct? 
  6. Because assumptions about the interpretive accuracy of the Rorschach assume that it was scored properly and interpreted in a uniformmanner  Correct? 
  7. Other than accepting your claims, we have no way of knowing if you scored the Rorschach accurately in thiscase  Correct? 
  8. And if you scored the Rorschach inaccurately, you could misinform and mislead thisproceeding  Correct? 
Posted on by Shawn Wygant

The “Improved” DSMIV? 

There is no available evidence indicating that the procedures of DSMIV have reduced the subjective biases associated with the diagnostic work of mental health professionals.  Diagnoses too often reflect the ethnic and social class prejudices of diagnosticians and the social stereotypes they associate with a particular disorder.i At PsychLaw.net we take for example, black patients are diagnosed as schizophrenic far more frequently than white patients.ii  This outcome corresponds more to the unfamiliarity of white diagnosticians with black culture.  Diagnostic labels also involve simple considerations of whether diagnosticians experience an affinity for their patients.  Patients who direct negative attitudes toward diagnosticians are labeled more seriously disturbed than patients who express deferential attitudes.iii  

The concept of “inter-rater reliability” was described in previous posts. The critically important question of interrater reliability asks: If two or more mental health professionals evaluate the same client, to what extent will they agree in their diagnostic conclusions?  Low levels of interrater reliability related to any classification procedure indicates that the procedure frequently leads to mistaken findings.   Surprising as it may seem, there are no interrater reliability data to be found in DSMIV.  DSMIII contained interrater reliability data for its various diagnostic categories, but the supposedly improved DSMIV neglected to report this information. The unavailability of interrater reliability data for the many diagnostic classifications of DSMIV profoundly undermines its evidentiary value. 

The 1999 Standards for Educational and Psychological Testingiv published by the American Psychological Association, clearly define the necessity of reporting interrater reliability data for any procedure relying on clinical opinion.  In particular, Standard 2.10 of these Standards states: 

“When subjective judgment enters into test scoring, evidence should be provided on both interrater consistency in scoring and withinexaminee consistency over repeated measurements.”v 

 

At PsychLaw.net we note that the use of DSMIV relies almost entirely on judgmental processes.  Neglecting to report interrater reliability data for its diagnostic categories therefore amounts to an egregious error.  Though DSMIV is not a psychological test per se, Standard 2.10 is nonetheless applicable to it.  The 1999 Standards specifically state:  

“The applicability of the Standards to an evaluation device or method is not altered by the label applied to it (e.g., test, assessment, scale, inventory).”vi 

 

DSMIV is an assessment technique designed explicitly for the assessment and classification of psycho-pathology. 

Despite the overwhelming importance of interrater reliability to diagnostic classification, most mental health professionals neglect to think about this issue carefully. At PsychLaw.net we consider, for example, how a doctorallevel psychologist responded to the following crossexamination. 

Attny: Do you know the research concerning the reliability of diagnoses? 

Psych: I don’t know what research you’re referring to. 

Attny: I’m referring to the scientific literature concerning the accuracy of diagnoses. 

Psych: I don’t know what you’re referring to, but if you could tell me, I’d be interested. 

Attny: Do you know what interrater reliability is? 

Psych: Yes, I do. 

Attny: Are you familiar with the research on the interrater reliability of DSMIV diagnoses? 

Psych: I am not. 

 

From the time of its first edition published in 1952, through its most recent 1994 fourth edition, each DSM has progressively increased the number of diagnosable disorders.vii The 1952 edition specified 60 categories of mental disorder.  The second edition, published in 1968, contained 145 diagnoses.  DSMIII, published in 1980, expanded to 230 disorders.  DSMIIIR, published in 1980, listed more than 300 diagnostic categories.  Most recently, the 1994 DSMIV has grown to more than 400 disorders.  Rather than lead to improved levels of interrater reliability, this increasing number of diagnosable disorders can only reduce the extent of diagnostic agreement between clinicians.  Increasing the number of category choices inevitably reduces the level of classification agreement between two or more raters. 

In addition to its many diagnostic classifications, DSMIV also uses a “Global Assessment of Functioning Scale” (GAF) to assess how effectively clients function in their daytoday lives.  Curiously, research data demonstrate no significant relationship between patient ratings of their own psychological symptoms, and clinical assessments of those patients using the GAF scale.viii  In other words, this 1995 study by Piersma and Boes, published in the Journal of Clinical Psychology,  demonstrated that GAF ratings are unrelated to how patients assess themselves. We at PsychLaw.net feel that quite obviously, this research sorely undermines the evidentiary value of GAF as a method for assessing the adequacy of a patient’s general functioning. 

Psychologists and laypeople alike typically assume that diagnosis is a necessary prerequisite to treatment.  Nevertheless, the relevant data fail to support this assumption.  In particular, two critics of the various DSM editions have sharply criticized its role in graduate training: 

“As clinicians, students may be given misinformation in graduate school.  They will be taught DSMIIIR or the fourth edition of the DSM as if it were science and not politics; but such diagnoses as are found in these texts predict only 5% to 10% of the outcome of psychotherapy.”ix (p. 216). 

 

CrossExamining The “Improved” DSMIV 

  1. Diagnoses too often reflect the ethnic and social class prejudices ofdiagnosticians  Correct? 
  2. BlackAmericansare diagnosed as schizophrenic more often than WhiteAmericans  Correct? 

3.But this outcome corresponds more to the unfamiliarity of whiteAmerican diagnosticians with blackAmerican culture  Correct? 

  1. Diagnostic labels can also involve considerations of whether diagnosticians experience an affinity for theirpatients  Correct? 
  2. The issue of interrater reliability is also critically important to any procedure for diagnosticclassification  Correct? 
  3. The critically important issue of interrater reliability asks: 

– [read] – 

“If two or more psychologists evaluate the same client, to what extent will they agree in their diagnostic conclusions”  Correct? 

  1. Low levels of interrater reliability related to any procedure for diagnostic classification indicates that the procedure frequently leads to mistakenfindings  Correct? 
  2. DSMIII, published in 1980, contained interrater reliability data for itsdiagnostic categories  Correct? 
  3. But the supposedly improved DSMIV neglects to report any interrater reliability for its diagnosticcategories  Correct? 
  4. Therefore, we do not know how often DSMIV leads to mistakenconclusions  Correct? 
  5. In other words, we do not know what the error rate is for any DSMIV diagnosticcategory  Correct? 
  6. And mental health professionals cannot claim that DSMIV is generallyaccepted  Correct? 
  7. Claiming that DSMIV is generally accepted necessitates that mental health professionals agree in their diagnostic conclusions when usingit  Correct? 
  8. But, we do not have interrater reliability data for the diagnostic categories ofDSMIV  Correct? 
  9. Mental health professionals cannot claim that DSMIV is generally accepted without knowing the extent to which theyagree  or disagree  in their diagnostic conclusions premised on DSMIV  Correct? 
  10. The 1999Standards for Educational and Psychological Testing were published as a cooperative undertaking between the American Psychological Association, the American Educational Research Association, and the National Council on Measurement in Education  Correct? 
  11. The 1999Standards for Educational and Psychological Testing define standards for a broad range of assessment procedures  Correct? 
  12. And the 1999Standards for Educational and Psychological Testing are generally recognized and accepted as defining appropriate standards of practice regarding a broad range of assessment procedures  Correct? 
  13. The 1999Standards for Educational and Psychological Testing indicate they can be applied to the following: 

– [ read ] – 

    “The applicability of the Standards to an evaluation device or method is not altered by the label applied to it (e.g., test, assessment, scale, inventory).” 

Now my question:  DSMIV is explicitly designed as Aa evaluation device” for the assessment and classification of psychopathology  Correct? 

20.Please consider what Standard 2.10 of the Standards for Educational and Psychological Testing state regarding interrater reliability: 

– [ read ] – 

“When subjective judgment enters into test scoring, evidence should be provided on both interrater consistency in scoring and withinexaminee consistency over repeated measurements.” 

Now my question:  The Standards for Educational and Psychological Testing therefore clearly define the necessity for interrater reliability data  Correct? 

21.DSMIV’s failure to report interrater reliability data consequently amounts to neglect of Standard 2.10  Correct? 

22.DSMIV also uses a “Global Assessment of Functioning Scale” (GAF)  Correct? 

23.And the GAF scale relies in part on what the patient tells the mental health professional  Correct? 

[USE THE 22 FOUNDATIONAL QUESTIONS FROM PREVIOUS POSTS 

IF YOU HAVE NOT YET DONE SO] 

24.The Journal of Clinical Psychology is a generally recognized and accepted, peerreviewed journal in your field  Correct? 

  1. And a 1995 article byPiersma and Boes published in the Journal of Clinical Psychology  titled “Agreement Between Patient SelfReport and Clinician Rating: Concurrence Between the BSI and GAF Among Psychiatric Patient”   might be related to your opinions in this case  Correct? 
  2. And in their 1995 study,Piersma and Boes found no significant relationship between patient ratings of their own psychological symptoms and clinical assessments of those patients using the GAF  Correct? 
  3. Have you published any data in apeerreviewed journal necessitating that we reconsider Piersma and Boes’ 1995 study? 
  4. Can you cite any data published in apeerreviewed journal necessitating that we reconsider Piersma and Boes’ 1995 study? 

29.Without any data necessitating reconsideration of Piersma and Boes’ 1995 study, their results  published in a peerreviewed journal  should be generally recognized and accepted by your profession  Correct? 

  1. In other words, your profession generally recognizes and accepts that there is no significant relationship between patient ratings of their own psychological symptoms and clinical assessments of those patients using theGAF  Correct? 

Cross Examination of Projective Techniques

Posted on by Shawn Wygant

Overview of Projective Techniques

In previous posts, we discussed psychological tests that obtain objective data.  Because of their objectivity, these tests can assist the legal system when used and interpreted properly.  In this post, we review projective tests.  Some of these instruments do not even qualify as standardized tests, and all of them lack the necessary validity and reliability for admissibility in court.  Because the proponents of these projective instruments tend toward pontification, we at PsychLaw.net feel that the cross examiner must be well prepared.  A quick and cogent cross examination is necessary to aid the court in understanding the shortcomings of these procedures.

Subjectivity of Projective Techniques

In comparison to objective tests, projective tests are significantly more subjective.  The procedures for collecting test data are not as well standardized for projective tests.  In other words, there are substantial variations in how psychologists administer the same projective test.  Responses to projective tests also vary enormously between people taking those tests.  Rather than rely on a true‑false or multiple choice options, projective tests obtain more open‑ended responses.  For example, people taking projective tests are asked: (1) “look at the designs on this card and tell me what they look like, or remind you of”; or (2) “look at this picture and tell me a story about the people you see.”

The scoring procedures for projective tests are also far less than objective.  As a result, two or more psychologists scoring the same projective test data, obtained from the same person, can report very different scores.  At PsychLaw.net we note that given these variations in scoring, two or more psychologists can arrive at exceedingly different interpretations of the same test data from the same person.  Despite these administrative and scoring problems, practitioners continue to use projective tests with considerable frequency.[1]

The subjectivity of the administrative and scoring procedures for projective techniques effectively undermine their evidentiary value.[2]  As a result, we will present a cross‑examination procedure directed at projective techniques in general.  The remainder of this section will then address four specific projective techniques: the Rorschach technique, projective drawings (especially the Draw‑a‑Person technique), the Thematic Apperception Test (TAT), and the projective use of Bender‑Gestalt.

As previously pointed out in other posts, psychological tests and other related procedures are designed for use by psychologists.  Non-psychologists have neither the education, nor the training in psychological assessment, to use these standardized procedures.  Nevertheless, various mental health professionals do use them. As a result, we recommend using the 1992 Ethical Standards of the American Psychological Association, and the 1999 Standards for Educational and Psychological Testing, as guidelines for cross examination. At PsychLaw.net we teach that a non-psychologist can also be asked: “Though you are not a psychologist, wouldn’t it be preferable for you to comply with the relevant ethical and practice standards related to psychological testing?”

Cross‑Examining the Subjective Nature of Projective Techniques

  1. Testing approaches for personality assessment can be divided into broad categories of “objective” and “projective” instruments ‑‑ Correct?
  2. The MMPI‑2 would be an example of an “objective” instrument ‑‑ Correct?
  3. And compared to objective instruments such as the MMPI‑2, projective techniques are more subjective in their scoring ‑‑ Correct?
  4. Hold up your hand with thumb and first finger separated by approximately six inches, and ask:

“Dr. X, please show me your estimate of six inches.”

  1. But I say this [wave your hand with thumb and first finger separated by approximately six inches] is six inches, but you say that your [point] estimate is six inches. Therefore, we have your subjective estimate, and we have my subjective estimate ‑‑ Correct?
  2. Which estimate is more accurate is a matter of conjecture and speculation ‑‑ Correct?
  3. That’s what subjective often means ‑‑ resorting to conjecture and speculation ‑‑ Correct?
  4. And there are inevitable differences in the conjecture and speculation between two or more mental health professionals ‑‑ Correct?
  5. And there are inevitable differences between the conjecture and speculation of two or more professionals because of their relying on subjective impressions ‑‑ Correct?
  6. And because of the inevitable differences in conjecture and speculation between two or more professionals, their subjective interpretations of projective test data may not agree ‑‑ Correct?
  7. Mental health professional A can score and interpret the projective test data obtained from someone in one way, but professional B can score and intepret those same data from the same person quite differently ‑‑ Correct?
  8. And when we have those variations between two or more professionals, we cannot know for sure who is accurate ‑‑ Correct?
  9. And when we have those variations in scoring and interpretation between two or more professionals, they may all be mistaken ‑‑ Correct?
  10. The variations in scoring and interpreting projective techniques could therefore misinform and mislead this proceeding ‑‑ Correct?

__________________________________________________________________________________________________________________________

[1].       The Rorschach has a long been blocked from use and discounted in forensic settings.  See for example: People v Jenko, 410 Ill. 478, 481, 102 NE 2d 783 (1952) [Rorschach testimony barred];  State of Utah v Phillip Rimmasch, 775 P 2d 388 (Utah Sup., 1989) [Rorschach testimony is violative of Rule 702]; McCarty v McCarty, (WL 259363 Neb App 1993) [Trial court properly disregarded Rorschach testimony].

[2].       Faigman, D.L. (1995). The evidentiary status of social science under Daubert: Is it “scientific”, “technical”, or “other” knowledge? Psychology, Public Policy, and Law, 1, 960-979. [ For the most part, psychologists who maintain rigorous scientific standards such as those described in the current edition of the APA’s Standards for Educational and Psychological Testing (1985) will find the effect of the Daubert standard to be more liberal than the old Frye standard.  But psychologists wyho cannot justify the validity & reliability of their measures, will find the Daubert standard far more severe].  See, also: Faigman, D.L. (1992). Struggling to stop the flood of unreliable expert testimony. 76 Minnesota Law Review 877-889; Faigman, D.L., Porter, E. & Saks, M. (1994). 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 Law Review 1799-1835.

USING THE FEDERAL RULES OF EVIDENCE AS A GUIDE: A Developmental Review

Posted on by Shawn Wygant

In their work to amend the Federal Rules of Evidence, the Rules Advisory Committee[1] worked hard to resolve the controversy in the application of Rules 702 and 703.[2]  We at  PsychLaw.net  feel it is important to note that when construing the Federal Rules, the Supreme Court has attached great weight to the accompanying Advisory Committee notes.[3]  For example, Justice Antonin Scalia maintained that “the Notes are assuredly persuasive scholarly commentaries-ordinarily the most persuasive-concerning the meaning of the Rules.”[4] Professor Imwinkelried has commented that the courts have ascribed great weight to the Advisory Committee notes: “because they realize that the original notes accompanied the draft Federal Rules throughout the congressional deliberations over the draft.”[5] In this regard, it is important to understand the legislative process the recent amendments to Federal Rules of Evidence 702 and 703 went through.[6]

In 1998, the Advisory Committee proposed amending Rule 702 to bring the rule into conformity with the Daubert trilogy.[7]  After the Standing Committee gave permission, the Advisory Committee solicited public comment between August 1998 and February 1999.[8] After revising one of the proposal’s three elements, the Advisory Committee forwarded Proposed Rule 702 to the Standing Committee in April 1999.[9] In June 1999, the Standing Committee approved and forwarded Proposed Rule 702 to the Conference. The Conference met again on September 15, 1999 and submitted the proposal to the Court on December 6, 1999.[10]  The Court submitted Proposed Rule 702, together with other proposed rule changes, to Congress on April 17, 2000.[11] The several committees of the Judiciary in Congress made no amendments, and the Rules as amended became law, December 1st, 2000.

As they read today, FRE 702 & FRE 703 are:

FRE 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

FRE 703:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

It is the purpose of this blog to aid courts in gatekeeping with behavioral science evidence.  We at  PsychLaw.net  hope to accomplish this first, by using the Rules and decisional law to construct a template for decision making with behavioral scientists and their proposed testimony.  Second, this blog is designed to give the gatekeeper an immediate appreciation of the principles and methodology[12] of the behavioral sciences.  Finally, we at  PsychLaw.net have drawn upon the scientific research in the areas of the behavioral sciences most frequently found in our courts to present an objective description of the datum of the discipline[13]in each subject area.

____________________________________________________________________________

[1]  In the recent amendments to Federal Rules of Evidence 702 & 703, the Rules Advisory Committee attempted to resolve this controversy:

“There has been some confusion over the relationship between Rules 702 and 703. The amendment makes clear that the sufficiency of the basis of an expert’s testimony is to be decided under Rule 702. Rule 702 sets forth the overarching requirement of reliability, and an analysis of the sufficiency of the        expert’s basis cannot be divorced from the ultimate reliability of the expert’s       opinion. In contrast, the “reasonable reliance” requirement of Rule 703 is a     relatively narrow inquiry. When an expert relies on inadmissible          information, Rule 703 requires the trial court to determine whether that    information is of a type reasonably relied on by other experts in the field.”

2  In Daubert, Chief Justice Rehnquist and Mr. Justice Stevens described the briefs they were reading prior to decision which dealt “ …with definitions of       scientific knowledge, scientific method, scientific validity, and peer        review…” 113 S Ct 2786 at 2799.  The two Justices offered that these concepts     were clearly “useful or even necessary in deciding how Rule 703 should be applied…” Id. emphasis added.  The Second Federal Circuit reasoned that Daubert principles interpreting FRE 702 apply equally to FRE 703. See: United States v. Locascio, 6 F.3d 924 at 938 (2d Cir. 1993), cert. denied., 511 U.S. 1070 (1994).

Following their decision in Daubert, the Supreme Court passed on a Third Circuit ruling in DeLuca v Merrell Dow Pharmaceuticals, Inc., 911 F 2d 941, (3rd Cir. 1990) aff’d without op. 6 F 3d 778 (3rd Cir. 1993) cert denied, 114 S Ct 691 (1994).  In DeLuca the Third Circuit reasoned that: “Rule 703 is satisfied once there is a showing that an expert’s testimony is based on the type of data a reasonable expert in the field would use in rendering an opinion on the subject at issue.” 911 F 2d at 953 emphasis added.

In another Third Circuit case:  In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (3rd Cir. 1994), cert. denied. 513 U.S. 1090 (1995)  – the Court refused to intervene in the Third Circuit’s notion that the trial court’s gatekeeping role with regard to experts includes independent evaluation of reasonableness or data relied on by experts under Fed. R. Evid. 703.  Indeed, the Third Circuit reasoned that applying same standard under 702 and 703 avoids need of making metaphysical distinctions between problems with    underlying data itself as opposed to problems with the methods used to analyze the data. Id. 35 F.3d 717, 748-749. In Raynor v. Merrell Pharmaceuticals, Inc., 104 F3d 1371, 1374 (D.C. Cir. 1997) the D.C. Circuit ruled that “Daubert creates no obvious bar to applying Rule 703 as we have done in the past.”

[3]  See, e.g.: Scallen, (1995) Interpreting the Federal Rules of Evidence: The Use and Abuse of the Advisory Committee Notes, 28 Loyola Los Angeles Law Review 1283.

[4]  See:  Tome v. U.S., 119 S. Ct. 696, 706 (1995).

[5]  Edward J. Imwinkelried “Rule 702’s Reach” 11/20/00 Nat’l L.J. A18, (Col. 1)

Professor Imwinkelried goes on to explain: “…the courts have correctly concluded that they should pay attention to the notes. The notes were not only carefully prepared by experts, but even more important, they were provided to the decision-makers well before the final decision to adopt the Federal Rules and the amendments.” Id.

[6] Procedurally:  28 U.S.C.§ 2071-2077 authorizes the Supreme Court to establish or amend rules for federal courts, including the rules of evidence. See 28 U.S.C. § 2072 (1994) “The Supreme Court shall have the power to prescribe . . . rules of evidence.”

Under the Court’s direction, the Conference “carr[ies] on a continuous study of the operation and effect of the general rules of practice and procedure” within the federal court system.

See 28 U.S.C. § 331 (1994). The Chief Justice of the Supreme Court, serves as the Conference’s Chairman and its other members include the chief judges of the twelve federal circuit courts of appeals, the Federal Circuit, the Court of International Trade and twelve district court judges representing each of the twelve circuits. see: Thomas E. Baker,(1991) An Introduction to Federal Court Rulemaking Procedure, 22 Texas Tech. Law Review 323, 328.

The Conference’s Committee on Rules of Practice and Procedure, often called the “Standing Committee”, coordinates this activity through sub-committees on specific areas of law.  These sub-committees are referred to primarily as “advisory committees”, and concern themselves with Appellate Rules, Bankruptcy Civil Rules and the Rules of Evidence.

See 28 U.S.C. § 2073(b) (1994): “The Judicial Conference may authorize the appointment of committees to assist the Conference by recommending rules to be prescribed under section 2072 and 2075 of this title”  The section which concerns rules of procedure and evidence is §2073(a)(2).

A proposed amendment must pass through seven steps before becoming a new federal rule.  First, the relevant advisory committee, on its own initiative or in response to public suggestion, considers an amendment to the existing rules at one of its biennial meetings.  Second, if an amendment is under consideration, the advisory committee submits its proposal to the Standing Committee. The Advisory Committee both considers and, if it agrees, seeks approval to publish a proposed amendment at either the same meeting or the next semi-annual meeting. If the Standing Committee allows the solicitation of comment on the proposed amendment, the advisory committee prints a notice in the Federal Register and accepts public comment for six months. The Federal Advisory Committee on Evidence Rules met on April 6 and 7, 1998, in New York City and approved three proposed amendments to the Federal Rules of Evidence. Third, after receiving public comment, the advisory committee considers whether the comments justify revising the proposed amendment. If no substantive changes are made, the advisory committee forwards its proposed amendment to the Standing Committee.  Should the advisory committee make substantive changes following the public comments, the committee may repeat the public comment process. At the fourth step, the Standing Committee either approves the amendment and forwards it to the Conference        or returns the proposal, occasionally with revisions, to the advisory committee. Fifth, when the Conference approves the proposal, the Conference sends the proposal to the Supreme Court. Sixth, if the Supreme Court supports the proposed amendment, it “prescribes” the amendment.

See 28 U.S.C. § 2072(a) (1994) Section 2074(a) of the Federal law requires that the Court submit its prescribed rule to Congress by May 1 of the year in which the Court intends the rule to become effective.

The final stage is left to Congress.  If  Congress does not act to amend, postpone or nullify the proposed rule, the rule as prescribed by the Court becomes effective December 1 of the year in which the Court submitted the   proposed rule to Congress. See 28 U.S.C. § 2074(a).

[7] See Fed. R. Evid. 702 (proposed 1999) Advisory Committee’s note: “Rule 702 has been amended in response to Daubert . . . and to the many cases        applying Daubert . . .” (citations omitted).

[8]  See Notice of Public Hearings, 63 Fed. Reg. 41,865 (Aug. 5, 1998).

[9] Compare the text of Fed. R. Evid. 702 (proposed 1998): “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, provided that (1) the testimony is sufficiently based upon reliable facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” emphasis added – against the text of Fed. R. Evid. 702 (proposed 1999): “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or   to determine a fact in issue, a witness qualified as an expert by knowledge,      skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data,(2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

[10] H.R. Doc. No. 106-225, reprinted in 2000 U.S.C.C.A.N. G195- 199.

[11] See H.R. Doc. No. 106-225, at 4-24, reprinted in 2000 U.S.C.C.A.N. G197. (containing text of Proposed Rule 702 as submitted by the Court).

[12] Daubert 509 U S 579, 113 S Ct at 2797. Emphasizing that the “focus….must be solely on principles and methodology” 509 U S 579, 113 S Ct at 2797.

[13] Daubert 509 U S 579, 113 S Ct at 2796.  Experts must know and base their opinions “reliably on the datum of their discipline.” 509 U S 579, 113 S Ct at 2796.

The Scientific Method ~ Methodology

Posted on by Shawn Wygant

The term “method” literally translated: “following a way” (from the Greek μέτα, “along,” and όδός, “way”), refers to the specification of steps which must be taken, in a given order, to achieve a given end.  For our purposes, methodology encompasses the procedures and practices of conducting and designing research so that reliable, valid and lawful relations can be identified.

At  PsychLaw.net  we teach that Methodology is not merely a compilation of specific practices, procedures, or strategies.  Methodology refers to a way of thinking.  Methodology teaches us ways to think about the relations between variables, about causes and effects, and about conclusions drawn from theory, research, and experience. In the behavioral sciences, the scientific method is specifically geared toward learning about an organism’s behavior by observing that behavior, while minimizing the influences of bias or opinion.  A method is applied because mere observation is not enough.  The scientific method is more rational than other human activities, highly rule-bound, very self-critical and con­sciously aiming at self-consistency.

In science, just as in court, it is the evidence supporting a statement that is most important. The scientific method provides the most con­vincing evidence, because instead of relying on mere observation or opinions or intuitions, it is based on the actual events themselves as they occur in nature.

For behavioral scientists, the claim to be scientific rests on the methods used in setting up appropriate experiments or in gathering relevant evidence and also on the willingness to submit the results to scrutiny. The distinction between science and pseudo-science is therefore essentially one of method, rather than content.

A common feature of pseudo-science is the use of analogies or resemblances to suggest causal connections, but without being able to specify or give direct evidence for them. The most obvious example of a pseudo-science is astrology. Astronomy is regarded as a science because it is based on observations and statistical analysis of those observations.  Astrology, however, is not considered a science, because it is based on a mythological scheme with an annual cycle of ‘signs’.

It is important to remember that science happens in a scientific community.  Peer interaction, in the form of repeating and building upon one another’s experiments, testing and elaborating one another’s theories, is essential for the self-corrective aspect of science.[i]

[i] Hamad, Stevan (1979) Creative Disagreement, 19 Sciences 18.

 

Mood-Congruent Memory Effect

Posted on by Shawn Wygant

At PsychLaw.net we teach that encouraging client expressions of frustration and anger potentially taints their memories via the mood‑congruent memory effect.  The relevant research demonstrates that induced mood significantly influences how people think about themselves and their life situations.[1] , [2], [3]  Simply thinking about a sad event leads to significant increases in depression and anxiety.[4]  Inducing a sad mood also increases the anticipation of negative events.[5]  Furthermore, these mood‑induced outcomes can influence the recall of past events.

Depression, for example, increases the probability of remembering parental figures as rejecting and relying on negative controls.[6]  This effect, however, promptly disappears as the level of depression diminishes.  We at PsychLaw.net find that quite clearly, then, encouraging harassment plaintiffs to engage in cathartic expressions of anger can influence their memories.  These practices increase the likelihood of plaintiffs recalling the defendant’s conduct in terms congruent with their therapeutically induced mood.  Mood influenced memory can then recall a defendant’s conduct in more exaggerated and extreme terms.

Cross‑Examining the Mood‑Congruent Memory Effect

  1. In the course of treatment with this plaintiff, you encouraged her to express her feelings of anger and frustration ‑‑ Correct?
  2. And you specifically encouraged the plaintiff to express her feelings of anger and frustration related to the defendant ‑‑ Correct?
  3. You are familiar with the term “mood‑congruent memory effect” ‑‑ Correct?
  4. The Journal of Systemic Therapies is a generally recognized and accepted, peer‑reviewed journal in your field ‑‑ Correct?
  5. And Campbell’s 1996 article – “Systemic Therapies and Basic Research” – might be relevant to your opinions in this case ‑‑ Correct?
  6. Please consider Campbell’s definition of the mood‑congruent memory effect found in his 1996 article:

– [ read ] –

“Laboratory research examining mood‑congruent memory effects has demonstrated that induced mood states significantly influence cognitive processes.”

Now my question: You accept this definition of the mood‑congruent memory effect ‑‑ Correct?

  1. If induced mood states significantly influence cognitive processes, then memory is one of the cognitive processes that can be influenced ‑‑ Correct?
  2. The Journal of Personality and Social Psychology is a generally recognized and accepted, peer‑reviewed journal in your field ‑‑ Correct?
  3. And a 1987 study by Lewinsohn and Rosenbaum published in the Journal of Personality and Social Psychology ‑ titled “Recall of Parental Behavior by Acute Depressives, Remitted Depressives, and Nondepressives” ‑ might be relevant to your opinions in this case ‑‑ Correct?
  4. Please make the following two assumptions: (1) Lewinsohn and Rosenbaum found that depressed people remember their parents as rejecting and relying on negative controls. (2) When their depression alleviates, however, these same people no longer remember their parents as rejecting and relying on negative controls.

Now my question: This study demonstrates how mood can influence memory ‑‑ Correct?

  1. And encouraging the plaintiff’s expressions of anger in this case could also have influenced her memory ‑‑ Correct?
  2. Encouraging the plaintiff’s expressions of anger could have influenced her to recall events consistent with her anger ‑‑ Correct?
  3. What she recalled could have corresponded more to her anger in the therapy sessions than to what really happened at her work ‑‑ Correct?
  4. In other words, your encouraging this plaintiff’s expressions of anger could have tainted her memory ‑‑ Correct?

[1].       Bower, G.J. (1981). Mood and memory. American Psychologist, 36: 129‑148.

[2].       Clark, D.M. & Teasdale, J.D. (1982). Diurnal variation in clinical depression and accessability of memories of positive and negative experiences. Journal of Abnormal Psychology, 91: 87‑95.

[3].       Snyder, M. & White, P. (1982). Moods and memories: Elation, depression, and the remembering of the events of one’s life. Journal of Personality, 50: 149‑167.

[4].       Baker, R.C. & Guttfreund, D.G. (1993). The effects of written autobiographical recollection induction procedures on mood. Journal of Clinical Psychology, 49: 563‑567.

[5].       Hendrickx, L., Vlex, C. & Calje, H. (1992). Mood effects of subjective probability assessment. Organizational Behavior & Human Decision Processes, 52: 256‑275.

[6].       Lewinsohn, P.M. & Rosenbaum, M. (1987). Recall of parental behavior by acute depressives, remitted depressives, and nondepressives. Journal of Personality and Social Psychology, 52: 611‑620.

If It Doesn’t Fit…

Posted on by Shawn Wygant

At PsychLaw.net we note that another recent mental health case illustrates the cross examiner attacking an otherwise well qualified expert on the basis of “fit”.[1] The Supreme Court adopted terminology used by Judge Becker of the Third Circuit in United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985), where it characterized a Daubert factor as one of “fit”.[2] Essentially, an otherwise well qualified expert may be attacked and/or stricken if his qualifications do not “fit” the issues in a case.  As in In re Dru, a well qualified psychologist was disallowed as an expert because he was called to testify on matters pertaining to medication – in a state where psychologists do not prescribe medication. The reviewing court reasoned that as he did not regularly prescribe medications, he could not give a meaningful opinion on the possible harmful effects of any proposed medications.[3]

This past year, two decisions evaluating “fit” came to different conclusions regarding how closely a proposed expert’s area of expertise needs to dovetail with the discrete subject on which they propose to testify. In Delaware, in Freidel v. Osunkoya[4], Mandy Friedel sought treatment from Dr. Amibola Osunkoya for opiate withdrawal, for which Dr. O prescribed methadone. She went back to him about a week later complaining of various discomforts, including chest pain. Dr. O continued her on methadone and prescribed an additional drug for her other symptoms.[5] Five days later, 24 year-old Mandy was dead of cardiovascular and pulmonary arrest, in which her blood level of methadone was thought to be a factor[6]. Mandy’s estate sued Dr. Osunkoya for medical negligence. In his defense, Dr. O sought to call Dr. Bruce Goldberger, a forensic toxicologist to testify. The proposed testimony concerned the levels of methadone found in Mandy’s blood and suggested they were within normal limits. The plaintiffs filed a motion in limine to prevent this testimony from the defendant’s expert on the grounds that although Dr. Goldberger may have been well-qualified as a toxicologist, he was not qualified to offer his opinion on the cause of Mandy’s death[7]. The Court agreed, explaining that,

Clearly Dr. Goldberger has impressive credentials. The issue is whether these credentials and his experience enable him to opine about Friedel’s cause of death…An expert may be highly qualified and competent to offer many opinions. But that expert must be competent to offer opinions in a given specific factual setting[8].

The Court found that the testimony Dr. Goldberger proposed to offer was not within the realm of a toxicologist, but rather a pathologist, and thus granted the plaintiffs’ motion in limine.[9]

We at PsychLaw.net find that as is unfortunately so often the case, where another state got it right, Texas got it wrong. In Menefee v. Ohman[10], a sixteen year old girl was admitted to a psychiatric hospital, where she was prescribed multiple psychoactive medications. When the girl became “confused” and fell down in her room, she was taken to Arlington Memorial Hospital for treatment. At this facility, her mother became concerned at her daughter’s condition, as the girl was “drooling…non-verbal…and her whole body was shaking”.[11] The mother removed her daughter from Arlington Memorial and took her to North Hills Hospital. At this hospital, she was examined by Dr. Ohman, who believed that the girl’s symptoms were reactions to her medication and felt they would dissipate as they wore off[12]. While at North Hills, the girl suffered seizures and brain damage. Mother sued Dr. Ohman, claiming that he had breached the standard of care by not prescribing anti-convulsant drugs for her daughter. Plaintiff mother sought to bring Dr. J. Boswell Tabler, a psychiatrist, to testify regarding the applicable standard of care of Dr. Ohman, a pediatrician consulting in the emergency room. Despite citing to prior caselaw that helpfully explained that, “…there is no validity…to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question…”,[13] the Court reasoned that, “‘there are certain standards of medical care that apply to multiple schools of practice and any medical doctor,’”[14] and found Tabler qualified to offer an expert opinion on the standard of care issue.[15] Where Delaware was right, Texas was wrong again.

We at PsychLaw.net feel that Indiana, on the other hand, got it right. In Bennett v. Richmond,[16] John Richmond was driving his van, minding his own business, when he was rear-ended by a truck driven by Henry Bennett. This collision resulted in injuries to Richmond’s neck, for which he sought medical treatment. A few months later, a work-related back injury caused the issues from the neck injury to flare up again.[17] Richmond underwent a neuropsychological evaluation with a psychologist, Dr. McCabe, to determine whether he had sustained a closed head injury in the car accident. McCabe concluded that Richmond’s symptoms indicated a traumatic brain injury caused by the accident with Bennett.[18] McCabe testified to such at trial over Bennett’s objections.[19] After a jury verdict in Richmond’s favor, Bennett appealed, contending that the trial court had erred in permitting McCabe’s expert testimony on the ground that he was not a physician and thus was therefore not able to testify regarding medical diagnosis.[20] Relying on the record produced by the cross-examiner, the Indiana Court of Appeals agreed, explaining that:

The evaluation of a brain injury, which is within Dr. McCabe’s field of expertise, is distinct from the determination of the medical cause of a brain injury, which is generally exclusively within the purview of medical doctors…Dr. McCabe has not demonstrated that he is qualified to opine on causation in this case.[21]

We at PsychLaw.net believe an excellent example of the court working diligently to sort out the competing claims about specific expertise and the qualifications of a proposed expert can be found in Bado-Santana v. Ford Motor Co.[22] In this matter, newly minted federal district court Judge Gustavo Gelpí in Puerto Rico was faced with competing claims about psychologist Maria Margarida and Mild Traumatic Brain Injury. In this case, Judge Gelpí undertook a detailed evaluation of the proposed expert’s qualifications and the manner in which her credentials and methodology “fit” the facts at issue in the case.

In another recent “fit” illustration, a plaintiff complained of injuries when a falling piece of wood struck her head while she was shopping at the defendant’s business. The plaintiff received treatment for her injuries from physicians and a psychologist. She also received case-management advice from one Michael Davis, a “brain injury specialist”.[23] At trial the judge allowed Davis to testify as a fact witness, but excluded a portion of his testimony relating to the plaintiff’s competence. The plaintiff attempted to qualify Davis as an expert based on the fact that he was certified as a “brain injury specialist” and attended numerous seminars, conferences, symposia, and classes on brain injuries. While is was clear that Davis had experience working with people suffering from brain injuries, the cross examiner brought out that his work has been limited to case-management services like coordinating benefits, finding rehabilitation experts, and assisting brain-injury sufferers in retaining appropriate legal counsel. The cross examiner demonstrated that Davis did not diagnose or provide therapeutic treatment to his clients. In fact, the cross examiner made a record that Davis had no formal education or experience in any medical field. In sustaining the trial court’s refusal to allow Davis to testify as an expert, the panel pointed out that while a degree is not a per se requirement, the experience or specialized knowledge the witness has must “fit” the field about which the witness proposes to testify.[24]

We at PsychLaw.net point that an excellent example of the court working diligently to sort out the competing claims about specific expertise and the qualifications of a proposed expert can be found in Bado-Santana v. Ford Motor Co.[25] In this matter, newly minted federal district court Judge Gustavo Gelpí in Puerto Rico was faced with competing claims about psychologist Maria Margarida and Mild Traumatic Brain Injury. In this case, Judge Gelpí undertook a detailed evaluation of the proposed expert’s qualifications and the manner in which her credentials and methodology “fit” the facts at issue in the case.

Cross examiners in Minnesota attacked the “fit” of an otherwise well qualified expert in Noske v. Friedberg,[26] and succeeded in blocking his expert testimony. In this case James Noske had a few beers and decided that the folks in the cabin across the highway were probably drug dealers. Mr. Noske went after them with his gun and was charged and convicted of second degree assault.  Thereafter, both the district court and the state court of appeals denied postconviction relief. Years later, Noske petitioned the federal district court for a writ of habeas corpus.  The federal district court ruled that attorney Friedberg’s assistance was constitutionally deficient and found that the introduction of a self-defense theory to the jury would have had a reasonable probability of altering the outcome of the case.  Noske had thus been “denied his Sixth Amendment right to effective assistance of counsel and was prejudiced thereby”[27]. The federal district court granted habeas relief, vacated Noske’s conviction, and authorized the state to retry Noske on the criminal-assault charge, which the state declined to do. Noske then filed a legal-malpractice action against Friedberg in state district court.[28]

At trial, Noske presented Michael Scherschligt, a Hamline University School of Law professor, as an expert. The trial court barred Scherschligt as an expert reasoning that a proposed expert must “make a substantial showing of qualification in the particular field of inquiry”[29]. Analyzing Professor Scherschligt’s experience on the basis of “fit” the court reasoned and the appellate panel agreed: experts should also have practical experience in the particular matter at issue. In this matter the court discovered that Scherschligt taught primarily torts and professional responsibility. The district court ruled that it was unlikely that Scherschligt, who had no practical or academic experience in criminal law and had only academic experience on issues of professional responsibility, could provide admissible expert testimony at trial[30]. Another proposed expert stricken on the basis of “fit”.

We at PsychLaw.net find that in another federal analysis of “fit”, the Third Circuit examined New Jersey District Judge Alfred J. Lechner Jr.’s error in exclusion of behavioral science testimony[31]. In a carefully crafted opinion, the Third Circuit describes how the District Court’s analysis should have proceeded. In Mathis, the defendant was identified by both a police officer as one of the men the officer saw fleeing from a New Jersey bank robbery. He was also identified by Steven Gantt, a man who pled guilty to the same robbery and rolled over on the defendant on eleven previous bank jobs.  At trial, District Judge Lechner ruled that the testimony of the unindicted co-conspirator (Mr. Gantt) was admissible against the defendant.

Mr. Mathis’ defense described the unindicted co-conspirator as a liar and focused on the police officer’s fleeting eye-witness identification.  The defense called upon Professor Geoffrey Loftus[32] to describe “…memory formation, double identification…post-event information…the relationship between confidence and accuracy, and weapons focus.”[33]

Following a Daubert hearing, Judge Lechner ruled that Loftus was clearly qualified as an expert, but stated: “…I believe this testimony has the probability of confusing and misleading the jury….I decline the invitation to admit.”[34] While the Third Circuit ultimately ruled that Judge Lerchner’s Daubert errors were harmless,[35] the Circuit’s instructions concerning the proper approach to behavioral sciences evidence is informative.

The panel began by describing Professor Loftus’ experience and education, agreeing with their district judge that he obviously qualified under a Daubert analysis.[36] The panel then listed the subject matter of the testimony Loftus proposed to offer:

Dr. Loftus then proffered testimony on four topics concerning the operation of human memory: (i) the preconditions for forming accurate memories, (ii) the confounding impact of “double identification” or “post-event information,” (iii) the relationship between individuals’ confidence in describing memories and the accuracy of such memories, and (iv) potential disruptions caused by “weapons focus.” With respect to memory formation, Dr. Loftus observed that, among other circumstances, the brevity of one’s     visual exposure to an object tends to cause an incomplete memory, which might later be especially susceptible to biasing influences.  Dr. Loftus described “double identification” as a problem in determining whether one’s        memory derives from one of two or more possible visual exposures to an object. According to Dr. Loftus, a witness’s recognizing someone, under circumstances similar to those described by [the police officer], could derive either from the witness’s actually having seen the recognized person or from a previous exposure to that person’s photograph.  Dr. Loftus indicated, citing scientific studies, that when one encounters a remembered image along with ‘post-event information’ suggesting a particular context from which the image might be remembered…[37]

 

Indeed, the numerous pages discussing Loftus’ proposed testimony provide a veritable treatise on the scientific factors which must be considered in eye-witness identification. Next, the panel carefully discussed what Professor Loftus described as the manner in which the relevant research fit the facts of the case.  This was the essential point of contention because the panel reasoned that it was in an analysis of “fit” where District Judge Lechner went wrong.[38]

As the Mathis panel further explained:

…[T]he government challenges the fit of Dr. Loftus’s testimony in three respects.   First, on the subject of “double identification” and “post-event information,” the government claims that Dr. Loftus’s testimony did not pertain to the present facts because, according to Dr. Loftus’s own theory, [the police officer] viewed Mr. Mathis’s face only once, as part of the suspect materials, before selecting from the photographic array. Thus, the government claims, this case did not involve any “double” identification…The government also argues that there was no post-event information “between the visual identification of Mathis on the day of the robbery and the photo array identification”…Each of these arguments misconstrues the substance of Dr. Loftus’s testimony.[39]

Reminding again and again of the “liberal standard of admissibility mandated by Rule 702”,[40]  the panel devoted ten solid pages to a clear explication of the interaction of the rules of evidence and the relevant behavioral science.

Citing to their district judge’s concerns over the “aura of reliability” and the supposed “confusion of the jury”, the panel explained:

We find is difficult to accord the customary degree of deference to the District Court’s discretion in this case… The District Court clearly expressed concern with “[t]he aura of reliability that’s attached to an expert witness”–which is one reason for district courts’ “gatekeeping function” in assessing expert testimony under Rule 702. …There is no suggestion, however, that such an aura of reliability was unwarranted in this case or, to be more precise, that it was unfairly prejudicial.  From the record, it seems that Dr. Loftus was an extremely qualified, experienced academic presenting opinion on topics near the heart of his expertise. Moreover, Dr. Loftus’s conclusions seem closely tied to empirical studies whose reliability is not impeached, and he explained the bases for these studies at apparently appropriate length.   In short, we see no reason to believe that Dr. Loftus’s aura of reliability reflected anything other than his actual reliability as an expert witness.   With respect to the District Court’s concern with “confusing and misleading the jury” and “unfair prejudice”, we are unable to discern from these references, any more than from our own review of the record, how such problems might arise.[41]

After its detailed analysis, the panel stated simply: “We find that, in this case, and on this record, it was an abuse of discretion not to admit such testimony into evidence.” [42]

___________________________________________________________________________________________________________________________

[1]         In re Dru G., 369 Ill.App.3d 650, 860 N.E.2d 845, 849 (2006).

[2]        Daubert, 113 S. Ct. 2786, at 2796.  The expert’s testimony must provide “a valid scientific connection to the pertinent inquiry.” Downing was a human memory and eyewitness testimony case. In Downing, the Third Circuit discussed certain of the rationales advanced by other courts of appeals in prior years for excluding such testimony, including notions that relevant issues could adequately be raised through cross-examination and common sense, that such testimony usurps the jury’s function, and that such evidence would lead to an unduly confusing “battle” of experts.  Downing, 753 F.2d 1224 at 1229-30 & n. 4. The Downing panel found those rationales unpersuasive, and disavowed the skepticism concerning such testimony as a matter of principle.  The panel then remanded for the district court to apply Rule 702‘s “helpfulness test.” In Downing the panel described this test, as: ‘[A]dmission depends upon the ‘fit,’ i.e., upon a specific proffer showing that scientific research has established that particular features of the eyewitness   identifications involved may have impaired the accuracy of those           identifications.”  Downing, 753 F.2d 1224 at 1226.

[3]        Id. Dru was a review of orders for the involuntary administration of

psychotropic medications.

[4]        994 A.2d 746 (Del. Super. Ct. 2010).

[5]        Id. at 748.

[6]        Id.

[7]        Id. at 751.

[8]        Id.

[9]        994 A.2d at 751-752.

[10]       323 S.W.3d 509 (Tex. App.-Fort Worth 2010).

[11]       Id. at 512.

[12]       Id.

[13]       Id. at 514, citing to Ehrlich v. Miles, 144 S.W.3d 620, 625.

[14]       323 S.W.3d 514, citing to Blan v. Ali, 7 S.W.3d 741, 746.

[15]       323 S.W.3d at 519.

[16]       932 N.E.2d 704 (Ind. Ct. App. 2010).

[17]       Id. at 706.

[18]       Id. at 706-707.

[19]       Id. at 707.

[20]       Id. at 709.

[21]       932 N.E.2d at 709-710.

[22]       482 F.Supp.2d 192 (D. Puerto Rico 2007).  Judge Gustavo Gelpí is the youngest United States District Judge for the District of Puerto Rico. He was appointed on August 1, 2006. Previously he served as a United States Magistrate Judge for five years. He is also a former Assistant Federal Public Defender and law clerk to Juan M. Perez Gimenez, his predecessor and now colleague on the federal bench.

[23]            Newman v. Farmacy Natural & Specialty Foods, 168 Ohio App.3d 630, 861 N.E.2d 559, 562 (Ohio App. 2006).

[24]       Id.

[25]       482 F.Supp.2d 192 (D. Puerto Rico 2007).  Judge Gustavo Gelpí is the youngest United States District Judge for the District of Puerto Rico. He was appointed on August 1, 2006. Previously he served as a United States Magistrate Judge for five years. He is also a former Assistant Federal Public Defender and law clerk to Juan M. Perez Gimenez, his predecessor and now colleague on the federal bench.

[26]       Noske v Friedberg, et. al., 713 N.W.2d 866 (Minnesota App. 2006).

[27]       Id.

[28]       Id. The district court dismissed the claim as barred by the statute of limitations.  The court of appeals reversed and remanded, and the supreme court affirmed, holding that Noske’s cause of action did not accrue until he was granted habeas corpus relief in 1999.

[29]       Id. 871.

[30]       Id. 872.

[31]       U. S. v Mathis, 264 F.3d 321 (3rd Cir. N.J., 2001).

[32]       Professor Geoffrey Loftus is the former research partner and former husband of Professor Elizabeth Loftus, the world renowned scientist and expert on human memory.  While a team, the Professors Loftus, carried on many studies and wrote numerous scientific papers on the issues relevant to memory and eye-witness identification.

[33]       264 F. 3d 321 at 340,  note seven.

[34]       264 F. 3d 321 at 335.

[35]       The evidence from the witnesses in the bank as well as that of the unindicted co-conspirator were seen as overwhelming.  264 F. 3d 321 at 343 – 344.

[36]       Curiously, someone transcribed that Professor Loftus earned his doctorate at “Stamford” University, when it was obviously Stanford, in Palo Alto, California. 264 F.3d 321 at 333.

[37]       264 F.3d 321 at 333 – 334.

[38]“      This court has construed Rule 702 as embodying ‘three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability, and fit.’  Elcock v. Kmart Corp., 233 F.3d 734, 741 (3rd Cir.2000).  Only ‘fit’ is contested here; the government acknowledges that Dr. Loftus is a properly qualified expert and that his methods, principles, and data are of a sufficiently reliable scientific character.  See generally Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (discussing factors that may be considered in assessing scientific reliability);  In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n. 8 (3rd  Cir.1994) (same).” 264 F.3d 321, 335.

[39]       264 F.3d 321 at 336 (emphasis added).

[40]       264 F.3d 321 at 335 & 336.

[41]       264 F.3d 321 at 336.

[42]       264 F.3d 321 at 342.

Victims, Villians, and Saviors

Posted on by Shawn Wygant

Clients frequently come into treatment expressing allegations and complaints about people close to them.  These allegations and complaints may be directed at spouses, siblings, or parents. Seeking the client’s loyalty, therapists often endorse these allegations.  At PsychLaw.net we find that as a result, client and therapist begin to think of the people with whom the client is disaffected, to some degree, as villains.  This often leads to the client assuming the role of a beleaguered victim; and the therapist evolves as an altruistic savior, assisting the client to contend with the villains of a “toxic family.”

When a significant person in a client’s life has been designated a “villain”, client and therapist gravitate into a closer alliance with each other.  Moreover, a designation as “victims” provides clients with an enhanced sense of potency that heretofore may have eluded them.  There is a great deal of secondary gain associated with the “victim” role.  Disregarding initial impressions to the contrary, a victim is actually more powerful than a villain.  Victims enjoy a virtuous reputation that inspires them, villains endure a malevolent reputation that humiliates them.

At PsychLaw.net we emphasize that when clients and therapists organize their relationship about the reciprocity of victim and savior, the identity of each demands the other persist in their role.  Victims need saviors, and saviors need victims.  Victims reassure saviors that they are in fact saviors, and saviors reassure victims that they are in fact victims.  When villains participate in the exchanges between victims and saviors, a triangulated relationship develop.[1]   These triangulated relationships typically organize themselves about the premise: “The enemy of my enemy is my friend;” and as a result, they can persist for extended periods of time.[2]

Therapists who create triangulated relationships act as if they ‑ and only they ‑ can assist their clients. As a result, these therapists often lure their clients’ into  excessive dependence.  Rather than solicit their clients’ dependency, effective therapists resolve the impasses that alienate clients from friends and family. An effective therapist assesses clients to identify the types of social support relevant to their needs.  Effective therapists ask themselves: Does the client need bolstered self‑esteem?  Does the client need information or help with day‑to‑day living?  Does the client need companionship?  The therapist then works to help the client’s friends or family members to increase the level of social support available to the client.  We at PsychLaw.net find that in circumstances such as these, the therapist progressively assumes a more peripheral role in relation to the client.  Simultaneously, friends and family emerge as the central figures they should be in the lives of the clients who need them.

Cross‑examining RE Victims, Villains, and Saviors.

  1. In this case, your client came into therapy expressing complaints about ____ (fill in the blank) ‑‑ Correct?
  2. And those complaints included ____, ____, and ____ ‑‑ Correct?

[Fill in the blanks with information obtained from treatment notes]

  1. And you responded sympathetically to those complaints ‑‑ Correct?
  2. And because you responded sympathetically to the client’s complaints, the client regarded you as a wise and perceptive person ‑‑ Correct?
  3. By responding sympathetically to the client’s complaints, you may have encouraged him to think of himself as a victim ‑‑ Correct?
  4. And in this exchange, the client thought of you as a savior ‑‑ Correct?
  5. And you and the client thought of the people with whom the client was disaffected as villains ‑‑ Correct?
  6. Have you ever heard the phrase, “The enemy of my enemy is my friend”?
  7. If you and I share the same enemies, we might become very loyal friends ‑‑ Correct?
  8. In other words, if the court reporter is my enemy, and if the court reporter is your enemy, then we can predict that you and I will be friends ‑‑ Correct?
  9. And this is the way you inspired loyalty in your client, her enemies became your enemies ‑‑ Correct?
  10. And inspiring that kind of loyality in clients can make them dependent on you ‑‑ Correct?
  11. And though the client was loyal to you, and developed a dependency on you, you never effectively assisted her in resolving the conflicts with the other people in her life ‑‑ Correct?

Strengths vs. Deficits.

The Freudian pursuit of insight predisposes legions of therapists to lead their clients into detailed analyses of their maladjustments.  Treatments focusing primarily on deficits suggest that clients must understand their many supposed maladjustments in great depth and detail.  In their determination to promote these kinds of insights, therapists can “prime” their dialogues with clients.

Therapists exercise priming effects via leading questions and other suggestive influences.  In turn, the responses expected of clients ‑ inventorying their many, supposed deficits ‑ prompts heightened therapist interest and attention.  Therefore, priming effects afford therapists the opportunity to lead clients into biased searches for their deficits and shortcomings.  Simultaneously, therapists overlook their clients’ strengths and resources.  We at PsychLaw.net find that these biased searches then leave clients more discouraged and pessimistic via mood‑congruent memory effects.

For almost 20 years, laboratory research has examined mood‑congruent memory effects.  This research demonstrates that induced mood states significantly influence how people think about themselves and their life situations.[3] , [4] , [5]  Simply asking people to think about a sad event, for example, leads to significant increases in depression and anxiety.[6]  Inducing a sad mood also increases the extent to which people anticipate negative events.[7]  Conversely, inducing a happy mood prompts marked decreases in levels of depression and anxiety.  Creating an up‑beat mood also increases the level of expectations for positive events.

Persuading clients they must undergo detailed dissections of their problems and deficits arouses their depression and anxiety.  Increasing clients’ depression and anxiety, while also creating heightened expectations for negative events, decreases their self‑confidence.[8]  Therefore, persistently examining the supposed shortcomings and deficits of clients leads to unfortunate outcomes.  Therapists who resort to these kinds of tactics create more needs for their services.  These tactics reduce clients to heightened self‑doubt and discouragement; and we at PsychLaw.net find that as a result, clients often conclude they need more therapy.  Unfortunately, legions of therapists describe such clients as “insightful.”

On the other hand, priming and mood‑congruent memory effects can also facilitate positive treatment effects.  Treatments that lead clients into detailed, comprehensive assessments of their strengths assist them more effectively.  This approach encourages clients to seek solutions for the problems that motivated their undertaking therapy in the first place.  In these circumstances, mood‑congruent memory effects arouse more optimistic expectations.  Clients inventory their existing strengths identifying how to most efficiently solve their problems.

Inventorying strengths moreover directs clients to issues of what needs to be done to cope more effectively.  Too often, inventorying client deficits deteriorates into a never‑ending, circular endeavor examining why those supposed deficits exist.  In other words, treatment questions of “What” motivate well‑defined courses of action compared to questions of “Why.”  Therefore, psychotherapy responds more effectively to the welfare of clients when it seeks to identify their strengths, as opposed to analyzing their deficits.

Cross‑examination RE Strengths vs. Deficits.

  1. Your course of therapy focused in considerable detail on the client’s problems and deficits ‑‑ Correct?
  2. And you wanted the client to insightfully understand her problems and deficits ‑‑ Correct?

[USE THE 22 FOUNDATIONAL QUESTIONS FROM PREVIOUS POSTS IF YOU HAVE NOT YET DONE SO]

  1. You are familiar with the term “mood‑congruent memory effect” ‑‑ Correct?
  2. The Journal of Systemic Therapies is a generally recognized and accepted, peer‑reviewed journal in your field ‑‑ Correct?
  3. And Campbell’s definition of the mood‑congruent memory effect found in his 1996 article – “Systemic Therapies and Basic Research” ‑ published in the Journal of Systemic Therapies might be relevant to your work in this case ‑‑ Correct?
  4. Please consider Campbell’s definition of the “mood‑congruent memory effect”:

– [ read ] –

“Laboratory research examining mood‑congruent memory effects has demonstrated that induced mood states significantly influence cognitive processes.”

Now my question: You can accept this definition of the mood‑congruent memory effect ‑‑ Correct?

  1. The Journal of Clinical Psychology is also a generally recognized and accepted, peer‑reviewed journal in your field ‑‑ Correct?
  2. And a 1993 study by Baker and Guttfreund published in the Journal of Clinical Psychology ‑ titled “The Effects of Written Autobiographical Recollection Induction Procedures on Mood” ‑ might be relevant to your opinions in this case ‑‑ Correct?
  3. Please consider how Baker and Guttfreund described their study:

– [ read ] –

“Conditions One and Two consisted of subjects being asked to think of the two saddest and two happiest events of their lives, respectively … The procedure produced marked decreases in depression (p < .001) and anxiety (p <.001) as mood states in Condition One (happy events) and marked increases in depression (p < .001) and anxiety (p < .001) in Condition Two (sad events).”

Now my question: If thinking about sad events increases depression and anxiety, this is an example of how induced mood influences cognitive processes ‑‑ Correct?

  1. When you and your client focused his attention on his problems and deficits, a sad mood  mood was induced ‑‑ Correct?
  2. And we know that inducing sad moods can increase people’s feelings of depression and anxiety ‑‑ Correct?
  3. Therefore, your leading this client into a detailed examination of her problems and deficits may have simply increased her feelings of depression and anxiety ‑‑ Correct?
  4. And clients who experience progressively greater levels of depression and anxiety can conclude they need more therapy ‑‑ Correct?
  5. In other words, a therapy that provokes heightened levels of depression and anxiety creates a need for its own services ‑‑ Correct?
  6. That kind of therapy creates a need for its own services because increasingly depressed and anxious clients usually conclude they need more therapy ‑‑ Correct?
  7. And some therapists call clients ‑ who think they need more therapy ‑ insightful ‑‑ Correct?
  8. And as a result of the Baker and Guttfreund study, we also know that thinking about happy events decreases depression and anxiety ‑‑ Correct?
  9. But in reviewing your treatment notes, you focused much more on the clients’ problems and deficits than you focused on his strengths and resources ‑‑ Correct?

__________________________________________________________________________

[1].       Bowen, M. (1978). Family therapy in clinical practice. New York: Jason Aronson.

[2].       Abelson, R.P. & Rosenberg, M.J. (1958). Symbolic psychologic: A model of attitudinal cognition. Behavioral Science, 3, 1‑13.

[3].       Bower, G.J. (1981). Mood and memory. American Psychologist, 36, 129‑148.

[4].       Clark, D.M. & Teasdale, J.D. (1982). Diurnal variation in clinical depression and accessibility of memories of positive and negative experiences. Journal of Abnormal Psychology, 91, 87‑95.

[5].       Snyder, M. & White, P. (1982). Moods and memories: Elation, depression, and the remembering of the events of one’s life. Journal of Personality, 50, 149‑167.

[6].       Baker, R.C. & Guttfreund, D.G. (1993). The effects of written autobiographical recollection induction procedures on mood. Journal of Clinical Psychology, 49, 563‑567.

[7].       Hendrickx, L., Vlex, C. & Calje, H. (1992). Mood effects of subjective probability assessment. Organizational Behavior & Human Decision Processes, 52, 256‑275.

[8].       Bandura, A. (1986). Social foundations of thought and action: A social cognitive theory. Englewood Cliffs, NJ: Prentice‑Hall

Negligent & Intentional Infliction of Psychological Injuries in Medical Practice

Posted on by Shawn Wygant

Unfortunately, there are numerous circumstances in which psychological injury can occur in medical contexts.  For example, fear of HIV infection as a form of phobia or psychological injury has been compensated in our courts.  In 1997 an Illinois appellate panel determined that a cause of action for negligent infliction of mental distress[1] was recognized for physician’s failure to disclose the fact that he had been infected with human immunodeficiency virus (HIV) to a patient when seeking patient’s consent to perform an invasive medical procedure.  The panel reasoned that even where there is no allegation of actual HIV transmission during course of the procedure, the lack of informed consent and the resulting anxiety in the patient was compensatable.[2]

In the context of psychiatric treatment, a California court discussed the psychological injury to a mentally impaired and chronically schizophrenic girl in Adams v Murakami. [3] In this case, the defendant physician treated the plaintiff, in a locked psychiatric unit over a span of many months. The unit had both male and female patients with free access to each other. The hospital permitted consensual sexual relations between patients and the staff knew that such activity was common. The defendant prescribed birth control for some of his patients, but not to plaintiff despite her requests.[4]  The court also found that the defendant made only monthly visits to see his patients, and he did not make examinations of his patients on those visits. The defendant also ignored the plaintiff’s symptoms of pregnancy until the plaintiff was in her seventeenth week of pregnancy. He then ordered an abortion, which was blocked by the plaintiff’s brother-in-law. The defendant did not take the plaintiff off of the psychotropic medications she was receiving, and did not inform her that they were contraindicated for pregnancy. A son was born who was severely retarded and autistic. The plaintiff experienced two acute psychotic breaks within a year of the birth. The court held that the defendant’s conduct was sufficiently outrageous to sustain substantial awards of both compensatory and punitive damages.[5]

At  PsychLaw.net  we find that even the practice of radiology can bring about psychological injury.  In Curtis v MRI Imaging Services II, [6] an Oregon court determined that a patient who sustained permanent psychic injures as result of MRI procedure stated viable claim for negligent infliction of emotional distress.  The patient did not allege any physical injury but was harmed when the professionals failed to warn him of the claustrophobic effects of an MRI.  This was particularly important because the defendant professionals also failed to learn beforehand of the patients’ asthma, and failed to stop the MRI procedure when he reported fear and trouble breathing.

In addition, numerous courts have sustained psychological injury claims when treatment was being delivered to others.  In Love v Cramer [7] a Pennsylvania court determined that the daughter of a woman whose death from a heart attack was caused by doctor’s negligence, had alleged sufficient harm to sustain an action against doctor for negligent infliction of emotional distress.  This was so even though the doctor’s negligence did not take place at time of mother’s death and daughter’s trauma.  The essential issue for recovery on the N.I.E.D. theory was that the daughter witnessed discrete and identifiable traumatic events in her mother’s deterioration and thereby suffered depression, nightmares, stress, and anxiety that required psychological treatment.

In Crippens v. Sav on Drug Stores, [8] a Nevada court determined that a pharmacy could reasonably have foreseen that its pharmacist’s negligent dispensation of wrong prescription drug to a daughter who provided care for her mother, (to whom drug was prescribed), would result in harm to daughter.  Because the daughter witnessed her mother’s extreme adverse reaction to the wrong prescription drug, the court held the daughter could bring a negligent infliction of emotional distress claim against the pharmacy.

In what we at  PsychLaw.net  believe is an equally tragic case, an Ohio court reasoned that a proper claim for N.I.E.D. could be sustained by a husband who witnessed his wife, covered in blood and under cardiac arrest, being brought to a hospital emergency room from the provider’s facility.  The hospital failed to fulfill the surgical services provider’s emergency request for four units of blood during surgery, and the woman died.[9]

Some of the most difficult circumstances of medical practice can lead to sustainable claims for Intentional infliction of emotional distress.  The Restatement (Second) of Torts, provides that the elements of a cause of action for Intentional Infliction of Emotional Distress are:

  • Extreme and outrageous conduct;
  • That gives rise to severe emotional distress; and
  • That was so reckless that the defendant expected or should have expected that severe emotional distress would result.[10]

In an older Tennessee case, a mother, some weeks after her premature baby died, asked her physician what had happened to the baby’s remains. The physician could only find that the baby was not disposed of as a surgical specimen.  The bereft mother went to the hospital to find out about her child and a clerk took her across the hall and pulled out a large jar that contained the baby preserved in formaldehyde. The Tennessee court ruled that these facts were sufficient to sustain an award for both compensatory and punitive damages for intentional infliction of emotional distress.[11]

In addition, in 1990, the Iowa courts took up a claim for “outrage”.  In Oswald v LeGrand [12] the court noted that a plaintiff began to bleed heavily after being examined by a defendant obstetrician in his office, whereupon she was taken by ambulance to the hospital.   She was then discharged, but the cramping and bleeding got worse the next day. Her husband took her to the emergency room but the defendant physician said there was nothing to be done and wrote discharge orders again. The plaintiff’s husband insisted that she be admitted and she was admitted despite the physician’s objection. The first nurse plaintiff saw told her she should have stayed at home.  Next, another nurse told plaintiff that if she miscarried, she would not have a baby but “a big blob of blood.”  The following day, one of the defendant doctors got into an argument with the family, insisting that he did not want to care for the plaintiff.  He then neglected her complaints of pain, and left to go on vacation. Minutes after he left, plaintiff began delivering her baby in the hallway and her husband had to kick open a door to get the attention of the nurses.

Providing clearly substandard care, the nurses only examined the baby visually and announced that it was stillborn. Another defendant physician then delivered the placenta but did not examine the infant and went back to his office. The father in the meantime touched the infant’s finger, had the grasp returned and advised a nurse. The nurse determined that the baby was alive and transferred it to neonatal intensive care, where it died about twelve hours later.  The Iowa court found that these facts were sufficient to state a cause of action for intentional infliction of emotional distress, even without expert testimony that would have been necessary to establish that any of the defendants committed malpractice.[13]

There are additional contexts in which extreme and outrageous behavior can lead to psychological injury.  In Andrews v Bruk ,[14] the Court determined that when a staff physician improperly accessed a patient’s confidential hospital records and annexed them, without consent, as exhibit to physician’s own divorce action, the plaintiff properly stated a cause of action in I.I.E.D.  In Macsenti v. Becker,[15] the Tenth Federal Circuit Court determined that when an Oklahoma dentist performing a delicate implant procedure, lost consciousness as many as ten to fifteen times during the process but nevertheless continued his attempt to complete the surgery, (heedless of any danger posed by keeping patient sedated for an unreasonably long procedure); the patient properly stated a cause of action for I.I.E.D.

_______________________________________________________________________________

[1]  Section 436A of the Restatement (Second) of Torts:  “Negligence Resulting in Emotional Disturbance Alone,” provides:

If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.

[2]  Doe v. Noe, 228 Ill. Dec. 937, 690 N.E.2d 1012 (App. Ct. 1st  Dist. 1997); See, also: Harris v. State, 187 Misc. 2d 512, 723 N.Y.S.2d 824 (Ct. Cl. 2001): A plaintiff can objectively establish actual exposure to HIV virus, as element of cause of action for phobia of acquired immune deficiency syndrome (AIDS), by proving (1) a means of transmission that is scientifically accepted as capable of conveying the virus and (2) the presence of blood or other fluid that is HIV-positive.  See, also: Monaco v. Health Partners of Southern Arizona, 196 Ariz. 299, 995 P.2d 735 (Ct. App. Div. 2 1999), review denied, (Feb. 8, 2000): Erroneous treatment that increased patient’s risk of leukemia resulted in substantial, long-term emotional disturbances sufficient to support claim for negligent infliction of emotional distress.  Patient was diagnosed with post-traumatic stress disorder (PTSD), had trouble sleeping, had nightmares about disease, woke up in sweat, and could no longer enjoy visits from children and grandchildren.

[3]  228 Cal App 3d 885, (2nd Dist., 1990) revd in part on other grounds 54 Cal 3d 105, 284 Cal Rptr 318, 813 P2d 1348 (1991).

[4]  Her chart indicated that she had been seen in bed with numerous men.

[5]  Id. See also: Jacoves v United Merchandising Corp. 9 Cal App 4th 88, 11 Cal Rptr 2d 468 (2nd Dist. 1992): A hospital or doctor may be liable to the parents of a psychiatric patient for negligent infliction of emotional distress damages caused by the breach of a duty to the parents arising out of a physician-patient. An assumed duty may arise from the utilization of the parents as active instrumentalities in the patient’s treatment. And similarly, see: Moczydloski v First Hosp. Corp., 19 D &  C 4th  259 (Pennsylvania, 1993): In an action arising from the suicide of a psychiatric patient after 21 days of treatment at the defendant hospital, a cause of action for negligent infliction of emotional distress lay where the patient’s widow participated in therapy sessions with the decedent and his physician and watched his continual deterioration in the 21 days before his death.

[6]  148 Or. App. 607, 941 P.2d 602 (1997).

[7]  414 Pa Super 231, 606 A2d 1175 (1992).

[8]  961 P.2d 761 (Nev. 1998).

[9]  McGill v. Newark Surgery Ctr., 113 Ohio Misc. 2d 21, 756 N.E.2d 762 (C.P. 2001).

[10]  Restatement (Second) Torts, § 46, pp. 71-72.

[11]  Johnson v Woman’s Hospital, 527 SW2d 133 (Tenn App. 1975).

[12]  453 NW2d 634 (Iowa, 1990).

[13]   Id. The court took pains to observe that it was not holding that there was a tort of rudeness, but that extremely rude behavior or crass insensitivity coupled with an unusual vulnerability in a person who is receiving professional services would be sufficient to sustain a recovery.  See, also: McAlpin v Sokolay,  596 So 2d 1266, 17 FLW D1012 (Florida App 5th Dist. 1992): The Appellate Court ruled that the trial court erred by dismissing a patient’s complaint against physician for failure to state a cause of action,  where the patient went to the doctor to receive a diagnostic x-ray for her medical problems.  Instead of the x-ray, the patient received verbal abuse which worsened her condition.  The court ruled that because a jury could find that the doctor’s conduct was not only unprofessional but also actionable for intentional infliction of emotional distress (deliberate or reckless, outrageous, and causally related to the emotional distress) the summary judgment was error.  See, also: Williams v Voljavec 202 Ga App 580, 415 SE2d 31(1992): Testimony by a patient, who suffered from chronic diabetes and was admitted to hospital’s coronary care unit after complaining of chest pains, that her physician relentlessly vented anger against her while she was in the hospital; and  that he was aware of her potentially fragile physical condition.  Further, testimony that her physical condition deteriorated after his conduct, was sufficient to sustain a cause of action against the physician for intentional infliction of emotional distress. And see: Gragg v. Calandra, 297 Ill. App. 3d 639, 231 Ill. Dec. 711, 696 N.E.2d 1282 (2nd Dist. 1998), reh’g denied, (Aug. 4, 1998): Allegations that hospital staff and physicians knew patient’s wife and adult daughter were extremely distraught but they accused the wife and daughter of trying to kill patient by requesting discontinuance of life support, stated claim for intentional infliction of emotional distress.

[14]  160 Misc 2d 618, 610 NYS2d 752 (1994).

[15]  237 F.3d 1223 (10th Cir. 2001).

Child Custody Evaluations and Appropriate Standards of Psychological Practice

Posted on by Shawn Wygant

The 1994 guidelines of the American Psychological Association indicate that child custody evaluations should respond to the best interests of the children as the issue of ultimate importance.[1]  In pursuing the best interests of the children involved, these guidelines recommend assessing: (1) the parental capacities of the competing parties, (2) the developmental status of the children including consideration of their needs and preferences when appropriate, and (3) what custody arrangement approximates the best fit between parental capacities and children’s needs.[2]

When addressing these three questions, custody evaluators must recognize the daunting task facing them.  We at PsychLaw.net emphasize that in particular, custody evaluators need to appreciate the complexity of the issues associated with these evaluations.  Profound changes in life circumstances provoke profound changes in how people behave ‑ and divorce surely qualifies as a profound change in life circumstances.  As a result, custody evaluations on a pre‑decree basis typically involve the difficult task of assessing a situation that does not yet exist ‑ how each parent will function as a single‑parent. We at PsychLaw.net feel that consequently, custody evaluators are obligated to assess: (1) the pre‑decree characteristics of existing parent‑child relationships, (2) the situational demands each parent will encounter as a single‑parent, and (3) how pre‑decree parental effectiveness will combine with the status of single‑parent to influence post‑decree parental effectiveness.

Divorce and Changing Family Dynamics– Assessment Issues

Assessing post‑decree parental effectiveness is further complicated by the inevitable behavioral changes exhibited by children as they grow and mature.  A recently recommended standard ‑ “the approximation rule” ‑ overlooks the profound changes associated with child growth and development.  The approximation rule advocates that subsequent to divorce, custody arrangements should approximate, as much as possible, the child rearing circumstances that existed prior to divorce.[3]  The approximation rule, however, assumes a degree of stability in the needs of children that, in fact, do not exist.  As children grow and mature, their relationships with their parents inevitably change.

Compromised parental effectiveness frequently corresponds to reduced emotional sensitivity, decreased parental attentiveness, and parental unavailability.  These parental characteristics ‑ increased unavailability, deceased attentiveness, and reduced sensitivity ‑ are common responses to the stress of divorce.[4]  Fortunately, these characteristics progressively resolve themselves over time as parents adjust, and reorganize their lives in response to divorce.[5]

It is taught at PsychLaw.net that custody evaluators must also appreciate the inordinate stress associated with marital dissolution and divorce.  These situational considerations are so powerful that they frequently influence reactions to divorce more than the personality characteristics of the litigants.  A 1997 article examining responses to the Minnesota Multiphasic Personality Inventory‑2 in custody evaluations emphasized:

“With few exceptions, child custody litigants represent a normal population undergoing a psychologically agonizing experience in their family life.”[6]

Custody evaluators who overlook these considerations are at risk for committing the “fundamental attribution error” discussed in Previous Posts.  This error leads custody evaluators into overemphasizing the personality characteristics of competing parental parties, and underemphasizing the significance of the situational circumstances confronting them.[7]

Cross‑Examination Regarding Divorce and Changing Circumstances

  1. Dr. X, you would agree that profound changes in life circumstances provoke profound changes in how people behave ‑‑ Correct?
  2. And you would also agree that divorce qualifies as a profound change in life circumstances ‑‑ Correct
  3. A custody evaluation in a case like this is an exceedingly difficult task ‑‑Correct?
  4. A custody evaluation in this case is an exceedingly difficult task because you are attempting to assess a situation that does not yet exist ‑‑ Correct?
  5. For example, you have attempted to assess how these litigants will function as single parents ‑‑ Correct?
  6. But in fact, neither one of them is a single parent at this point in time ‑‑ Correct?
  7. Therefore, you were faced with the task of assessing how the reactions of these parents to the stress of divorce will influence their parental effectiveness ‑‑ Correct?
  8. Considering the needs of the children involved, we know that their needs will change as they grow and mature ‑‑ Correct?
  9. Parental behaviors that are effective at this point in time, may not be effective in the future as result of changes in their children’s behavior ‑‑ Correct?
  10. And the stress of divorce can temporarily compromise parental effectiveness ‑‑ Correct?
  11. And with the passage of time, most people recover from the devastating effects of divorce ‑‑ Correct?
  12. Adjusting to the stress of divorce assists most people to function more effectively as parents ‑‑ Correct?
  13. But, you do not know whether one, or both, of these parents will remarry ‑‑ Correct?
  14. And if one or both of these parents remarry, you don’t know how the remarriage will influence their parental effectiveness ‑‑ Correct?
  15. And you do not know what kind of peer‑group influences these children will encounter in the future ‑‑ Correct?
  16. In other words, there are many future developments that will transpire in the lives of these parents and children which you cannot factor into your current recommendations ‑‑ Correct?
  17. The value of your evaluation is therefore limited because of all the future events in the lives of these children, and their parents, that you cannot accurately forecast ‑‑ Correct?

_____________________________________________________________________________

[1].       For one of the more interesting statements on the children’s best interests, see:Parham v J.R., 442 U.S. 584 (1979) [Did the parents act in the child’s best interests in committing the child to a mental institution.]

[2].       American Psychological Association (1994). Guidelines for child custody evaluations in divorce proceedings. American Psychologist, 49, 677-680.

[3].       Scott, E.S. (1992). Pluralism, parental preference, and child custody. California Law Review, 80, 115-172.

[4].       Hetherington, E.M., Bridges, M., & Insabella, G.M. (1998). What matters? What does not?: Five perspectives on the association between marital transitions and children’s adjustment. American Psychologist, 53, 167-184.

[5].       Wallerstein, J.S. & Lewis, J. (1998). The long-term impact of divorce on children: A first report from a 25-year study. Family and Conciliation Courts Review, 36, 368-383.

[6].       Bathurst, K., Gottfried, A.W., & Gottfried, A.E. (1997). Normative data for the MMPI-2 in child custody litigation. Psychological Assessment, 9, 205-211 (p. 209).

[7].       Fundamental attribution errors and the mis-emphasis of particularities in a divorcing circumstance are endemic to the court’s search for information.  See, i.e.:Rohman, Sales, and Lou, (1990). The Best Interests Standard in Child Custody Decisions. In David Weisstub (Ed.), Law and Mental Health: International Perspectives (Volume 5) 40; Sales, Manber, Rohman,(1992). Social Science Research and Child Custody Decision-Making.  1 Applied and Preventive Psychology: Current Scientific Perspectives 23.

Research v. Clinical Judgment

Posted on by Shawn Wygant

The recent case of People v. Banks[1] in New York demonstrates that reliance on “clinical judgment” is like “shooting from the hip”. Banks found trial judge Barbara Zambelli working her way through a complicated explication of clinical judgment and research based opinions. Banks is instructive because it involved a pitched battle over expert testimony regarding eyewitness identification and 1) the low correlation between a witness’s confidence and the accuracy of the witness’s identification; 2) the effect of post event information on accuracy of identification; and 3) research concerning the eyewitness identification phenomena of stress, partial disguise, own-race bias, and weapons focus. Here, we at PsychLaw.net find that  expert Steven Penrod and his examiners made it clear that although there was a great deal of anecdotal information on these phenomena, Penrod was relying on research, not “clinical judgment”.

In addition to making a record, U.S. v. Daniels[2] from the Ninth Federal Circuit illustrates the importance of the cross examiner knowing precedent in matters involving clinical judgment. In U.S. v Birdsbill[3] and U.S. v White Horse,[4] two federal district courts and an appellate panel of the Eighth Federal Circuit undertook a detailed analysis of the “Abel testing” process used by some state sex offender programs.  In both Birdsbill and Whitehorse the courts found the process developed by Dr. Gene G. Abel of Abel Screening Inc., of Atlanta, Georgia, to be unreliable.  In Daniels, however, the clinical judgment which directed that the Abel process should be coupled with the polygraph and forced on California inmates was not seriously challenged. Without a cogent record to rely upon, the Ninth Circuit simply ruled that, “Abel testing does not implicate a particularly significant liberty interest…”.[5]

Another recent case of the use of “clinical judgment” involves a defendant’s expert testifying about his clinical judgment, which was manifestly different than the published research – even the research he alluded to! In Rush v. Jostock,[6] a defendant’s expert cited the DSM-IV for a sense that the Plaintiff was malingering.  We at PsychLaw.net note that this expert also cited the research on spinal injury incorrectly and the case is an excellent example of the cross examiner asleep at the switch.

In this case, Sherry Rush was rear-ended by Tasha Jostock.  Unfortunately for Sherry Rush, it happened in Minnesota.[7] Prior to trial, respondent admitted liability, so the sole issue before the jury was damages. Plaintiff sought to exclude testimony of the defendant’s expert, one Dr. Kazi, regarding “Waddell’s signs” and the DSM-IV concerning malingering. Plaintiff argued that Waddell’s signs were clinically insignificant in cases involving cervical pain; that in order for Waddell’s signs to be of significance, three of five must be present, which was not the case here; that defendants had never identified the DSM-IV as a treatise which was to be used in the proceeding; and that defendants had failed to qualify Dr. Kazi to testify about the contents of the DSM-IV. The trial court, in denying her motion in limine, declared that the issue was not one of admissibility but one of the weight to be given by the jury to Dr. Kazi’s opinions.[8]

The appellate panel instructed that the competency of a witness to provide expert medical, and in this case, psychiatric testimony, depended upon both the degree of the witness’ scientific knowledge and the extent of the witness’ clinical judgment from practical experience.[9] At trial the expert testified that he had examined the Plaintiff on two occasions. After the first examination, the expert noted that Sherry Rush displayed “two of five Waddell’s signs, which indicated probable presence of symptom magnification and functional overlay.”[10] Dr. Kazi conducted a second examination, after which he concluded that Sherry Rush displayed “one of five Waddell’s signs.” Kazi testified that Waddell’s signs are five in number and are considered signifiers of non-organic source of low back pain when three or more of the signs are present. This is incorrect, but the cross examiner missed it.[11] Consequently, Kazi testified that she was malingering with DSM IV language – Sherry Rush received zero damages for her pain & suffering.

At PsychLaw.net we find that another recent example of “clinical judgment” involves the psychology of perception. In Kilgore v. Carson Pirie Holdings, Inc.[12] the “wallpaper illusion”[13] was litigated in a slip and fall case. In Kilgore, a customer brought a negligence action against a department store to recover for injuries sustained when she fell while descending a stationary escalator. The United States District Court for the Eastern District of Tennessee entered summary judgment in favor of the store, and the customer appealed. The Sixth Circuit panel affirmed the exclusion of the plaintiffs’ expert witness. The expert, who the defendants’ cross examiner was able to strike, attempted to explain that a stationary escalator should not be used as a stairway because the appearance of the risers creates an “optical illusion” that causes a state of disorientation dangerous to persons standing at the top of the escalator looking down. The expert relied on two sources for this position: (1) an article entitled, “Wallpaper Illusion Causes Disorientation and Falls on Escalators;”[14] and (2) his own personal experience riding escalators. When the cross examiner demonstrated that Plaintiff’s proposed expert did not know or understand what research or methodology the article was based upon and that he did not conduct any independent research on this subject, he was suspect at best.  When pressed by the cross examiner, the proposed expert did state that he did “a lot” of research on the optical illusion created by the appearance of an escalator, but he could not refer to anything in specific. In fact, when pressed closely, he only offered the Consumer Protection Agency website, despite the fact that no information from that website was offered as an exhibit. Exposing the basis for the expert’s sense of the issue as his own “personal experience” found the appellate court ruling that the trial court was within its discretion in concluding that the expert’s testimony would not assist the trier of fact in determining the dangers of riding a stationary escalator, because the expert’s position was not supported by sufficient data or reliable methodology.[15]

Given all of these examples of experts spouting their clinical judgment in the courtrooms,  we at PsychLaw.net feel that cross examiners should be gladdened that clinical judgment may indeed be the basis for striking proposed expertise. In numerous recent cases, courts have been reiterating that when a decent foundation has been laid, the trier of fact does not need to credit an expert at all.[16]

_____________________________________________________________________________________________________________________________

[1] 16 Misc.3d 929 (County Court, Westchester County, New York, 2007).

[2] 541 F.3d 915 (9th Cir. App. 2008).

[3] 243 F.Supp.2d 1128; 2003 WL 256914 (D. Montana) January 24th, 2003.

[4] 316 F. 3d 769 (8th Cir. January 15th, 2003).

[5] Daniels, 541 F.3d 915, 926.

[6] 710 N.W.2d 570 (Minnesota App. 2006).

[7] Minnesota remains a Frye State.  That means that foundational reliability goes to the weight that should be accorded to expert testimony, not whether it should be admitted in the first place. State v. MacLennan, 702 N.W.2d 219, 230 (Minn., 2005).

[8] 710 N.W.2d 570, 574 (Minnesota App. 2006).

[9] Id.

[10] Id. 710 N.W.2d 570, 573.

[11] See, also: Spine. 2004 Jul 1;29(13):1392. Nonorganic physical signs in low-back pain are described and standardized in 350 North American and British patients. These nonorganic signs are distinguishable from the standard clinical signs of physical pathology and correlate with other psychological data. By helping to separate the physical from the nonorganic they clarify the assessment of purely physical pathologic conditions. It is suggested also that the nonorganic signs can be used as a simple clinical screen to help identify patients who require more detailed psychological assessment.

[12] 2006 WL 3253490 (6th Cir. (Tenn.)) (Not Recommended for Publication).

[13] Shifts in the apparent depth of a repetitive pattern or texture occur when the eyes are fixed at a position in front of the pattern. Observations on this phenomenon, known as the Wallpaper illusion, have been made by sensation/perception research psychologists for almost three centuries.  See, McKee, S. P., Verghese, P., Ma-Wyatt, A., & Petrov, Y. (2004). The wallpaper illusion revisited. 4 (8) Journal of Vision, 592;  Kohly, Radha P. and Ono, Hiroshi (2002) Fixating on the wallpaper illusion: a commentary on ‘The role of vergence in the perception of distance: a fair test of Bishop Berkeley’s claim’ by Logvinenko et al. 15 Spatial Vision 377; Foley, J. M. and Richards, M. (1972). Effects voluntary eye movement and convergence on the binocular appreciation of depth, 11 Perception and Psychophysics  423.

[14] Cohn TE, Lasley DJ. (1990) Wallpaper illusion: cause of disorientation and falls on escalators. 19(5) Perception 573. The wallpaper illusion, can occur when a person with normal binocular vision views a pattern that is periodic in the horizontal meridian of the visual field. Escalator trends present such a pattern. Evidence is presented favoring the view that disorientation experienced by escalator riders is caused by this illusion. Possibly some of the estimated 60,000 escalator falls occurring in the United States each year are linked to it.

[15] 2006 WL 3253490 page 4-(6th Cir. (Tenn.)) (Not Recommended for Publication).

[16] See, e.g.: McWreath v. Ross, 2008 WL 4876872 (Ohio App. 11 Dist. unpublished): “We recognize that a trier of fact is not required to believe an expert giving the testimony.” citing to McCall v. Mareino 138 Ohio App.3d 794, 799, 742 N.E.2d 668 (2000) 2008 WL 4876872 *8.  Smith v. Andrews, 289 Conn. 61 (Conn. S.C. 2008) “the jury is under no obligation to credit the evidence offered by any witnesses, including experts; even if that evidence is uncontroverted.” citing to Johnson v. Healy, 183 Conn. 514, 516-17, 440 A.2d 765 (1981). Harris v. Delta Devolpment Partnership, 994 So.2d 69 (La.App.1 Cir. 2008): “It is well settled in Louisiana that the trier of fact is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence.” citing to Williams v. Rubicon, Inc., 808 So.2d 852, 858 (La.App. 1st. Cir. 2002). 994 So.2d 69, 77.  and  Pisel v. Stamford Hospital, 180 Conn. 314, 344, 430 A.2d 1 (1980). 289 Conn. 61, 72.  And see Grainger v. Wald, 982 So.2d 42 (Fla.App. 2008“A jury is free to weigh the credibility of expert wit-nesses as it does any other witness, and reject even uncontradicted testimony.”citing to  Republic Servs. of Fla. v. Poucher, 851 So.2d 866, 871 (Fla. 1st DCA 2003); 982 So.2d 42, 43.

Psychological Testing

Posted on by Shawn Wygant

Most of the data cited in this section address how divorce influences what occurs between parents, between parents and children, and between parents, children, and their life situations.  In view of this “between” emphasis, the extensive use of psychological testing in custody evaluations creates a curious dilemma. At PsychLaw.net we believe that rather than assess what occurs between people, most psychological tests assess what transpires within people.  Unfortunately, attempting to infer some psychological state within people encourages psychologists to indulge in the speculative judgments that jeopardize their status as expert witnesses.  Even greater cause for concern is the fact that these psychological states (ego‑strength, intra‑psychic conflicts, personality organization, etc.) are so ill‑defined that they rarely predict parental effectiveness.

Authoritative Opinion

Recognized authorities in the area of custody evaluations have repeatedly emphasized that an habitual reliance on psychological tests is grossly inappropriate[1].  Thomas Grisso observed that psychological tests cannot assess parental effectiveness.[2]  Lois Weithorn, a former member of the American Psychological Association’s Ethics Committee, deplored the use of tests such as the Rorschach, Thematic Apperception Test, and projective drawings in custody evaluations.[3]  Benjamin Schutz and his colleagues, authors of a comprehensive guide for custody evaluations, also dismissed psychological tests as typically irrelevant when evaluating parental competence.[4]  David Brodzinsky challenges psychological testing for custody evaluations in particularly blunt terms:

          “… many lawyers and judges have an unrealistic view of what psychological testing can accomplish.  There is an often an assumption, sometimes expressed overtly, that testing provides a scientific foundation for the forensic evaluation.  In other words, it allows the evaluator to go beyond the subjective nature of ‘clinical impression’ or ‘clinical judgment’ that is inherent in interviews and observations.  There is a view that psychological tests allow the evaluator to be truly objective and therefore unbiased.  This assumption is, of course, naive.”[5]

Melton, Petrilla, Poythress, and Slobogin, authors of what is generally recognized as the definitive reference in forensic psychology, Psychological Evaluations for the Courts, also challenge the excessive reliance on psychological tests in custody evaluations.

“It is our contention that such tests are often used inappropriately.  Tests of intellectual capacity, achievement, personality style, and psychopathology are linked only indirectly, at best, to the key issues concerning custody and visitation.”

Melton and his colleagues continued to emphasize:

“Thus, apparent practices notwithstanding, we recommend the use of traditional psychological tests only when specific problems or issues that these tests were designed to measure appear salient in the case.”[6]

Given the kinds of assessment problems which custody evaluations pose, it becomes clear to us at PsychLaw.net that psychological tests alone will not suffice.  Rather than assess the situational circumstances which potential custodians would contend with as single parents, psychological testing confines itself to assessing the characteristics of individuals.  Thus, psychological testing in custody evaluations assumes a degree of consistency between pre‑divorce and post‑divorce situations that is unwarranted.

Cross‑Examining Psychological Testing for Custody Evaluations

[USE THE 22 FOUNDATIONAL QUESTIONS FROM PREVIOUS POSTS

IF YOU HAVE NOT YET DONE SO]

  1. The American Psychologist is a generally recognized and accepted peer‑reviewed journal ‑‑ Correct?
  2. And a 1987 article by Grisso published in the American Psychologist ‑ titled “The Economic and Scientific Future of Forensic Psychological Assessment” ‑ might be relevant to your opinions in this case ‑‑ Correct?
  3. Please consider Grisso’s comments from his 1987 article:

– [ read ] –

“… there is almost no empirical information concerning how to use parents’ Wechsler or MMPI results to make inferences about their abilities to perform specific parenting functions”

Now my question: If there is almost no empirical information concerning how to use parents’ Wechsler or MMPI results for assessing specific parental functions, then your relying on these instruments could misinform and mislead this proceeding ‑‑ Correct?

  1. You have not published anything in a peer‑reviewed journal necessitating that we reconsider Grisso’s opinions in this regard ‑‑ Correct?
  2. You cannot cite anything published in a peer‑reviewed journal necessitating that we reconsider Grisso’s opinions in this regard ‑‑ Correct?
  3. And the journal Professional Psychology: Research and Practice is also a generally recognized, and accepted peer‑reviewed journal in your field ‑‑ Correct?
  4. A 1993 article authored by Brodzinsky ‑ titled “On The Use and Misuse of Psychological Testing in Child Custody Evaluations” ‑ published in Professional Psychology: Research and Practice could be relevant to your opinions in this case ‑‑ Correct?
  5. Please consider the following comments from Brodzinsky’s 1993 article:

– [ read ] –

“… many lawyers and judges have an unrealistic view of what psychological testing can accomplish.”

Now my question: If lawyers and judges have an unrealistic view of what psychological testing can accomplish, your relying on psychological testing in this case could misinform and mislead this proceeding ‑‑ Correct?

  1. You have not published anything in a peer‑reviewed journal necessitating that we reconsider Brodzinsky’s position in this regard ‑‑ Correct?
  2. You cannot cite any thing published in a peer‑reviewed journal necessitating that we reconsider Brodzinsky’s position in this regard ‑‑ Correct?
  3. Please consider these additional comments from Brodzinsky’s 1993 article:

– [ read ] –

“There is an often an assumption, sometimes expressed overtly, that testing provides a scientific foundation for the forensic evaluation.  In other words, it allows the evaluator to go beyond the subjective nature of ‘clinical impression’ or ‘clinical judgment’ that is inherent in interviews and observations.”

Now my question:  “face validity” refers to a situation in which a psychological test may appear valid, but there is no empirical data supporting its validity ‑‑ Correct?

  1. And assuming that psychological testing provides a scientific foundation for forensic evaluations could increase the “face validity” of psychological tests in custody evaluations ‑‑ Correct?
  2. Please consider these further comments from Brodzinsky’s 1993 article:

– [ read ] –

“There is a view that psychological tests allow the evaluator to be truly objective and therefore unbiased.  This assumption is, of course, naive.”

Now my question: If it is naive to assume that psychological tests allow an evaluator to be objective and unbiased, you are ethically obligated to so notify this court ‑‑ Correct?

  1. Ethical Standard 7.04 (b) of your 1992 ethical code requires:

– [ read ] –

“Whenever necessary to avoid misleading, psychologists acknowledge the limits of their data or conclusions.”   ‑‑ Correct?

  1. And compliance with Standard 7.04 (b) of your ethical code could obligate you to inform this court that the value of psychological testing in custody evaluations is limited ‑‑ Correct?
  2. Again, please consider Brodzinsky’s previously quoted comments:

– [ read ] –

“There is a view that psychological tests allow the evaluator to be truly objective and therefore unbiased.  This assumption is, of course, naive.”

Now my question: You have not published anything in a peer‑reviewed journal necessitating that we reconsider Brodzinsky’s position in this regard ‑‑ Correct?

  1. You cannot cite anything published in a peer‑reviewed journal necessitating that we reconsider Brodzinsky’s position in this regard ‑‑ Correct?
  2. Now my question: If “lawyers and judges have an unrealistic view of what psychological testing can accomplish.” – you are at risk for misinforming and misleading this proceeding ‑‑ Correct?
  3. You have not published anything in a peer‑reviewed journal necessitating that we reconsider the position of Brodzinsky I just quoted ‑‑ Correct?
  4. You cannot cite any article published in a peer‑reviewed journal necessitating that we reconsider the position of Brodzinsky I just quoted ‑‑ Correct?
  5. The 1997 Second Edition of Psychological Evaluations for the Courts ‑ written by Melton, Petrilla, Poythress, and Slobogin ‑ is a generally accepted text in the area of forensic psychology ‑‑ Correct?
  6. These four authors ‑ Melton, Petrilla, Poythress, and Slobogin ‑ have also published hundreds of articles between them in peer‑reviewed journals ‑‑ Correct?
  7. And their hundreds of publications in different peer‑reviewed journals allows us to place confidence in their opinions ‑‑ Correct?
  8. And commenting on the use of psychological tests in custody evaluations, Melton, Petrila, Poythress, and Slobogin have written:

– [ read ] –

“It is our contention that such tests are often used inappropriately.  Tests of intellectual capacity, achievement, personality style, and psychopathology are linked only indirectly, at best, to the key issues concerning custody and visitation.”

Now my question: Melton, Petrila, Poythress, and Slobogin are therefore also indicating that psychological testing is overused in custody evaluations ‑‑ Correct?

  1. You have not published anything in a peer‑reviewed journal necessitating our reconsidering the postion of Melton, Petrila, Poythress, and Slobogin ‑‑ Correct?
  2. You cannot cite anything published in a peer‑reviewed journal necessitating our reconsidering the postion of Melton, Petrila, Poythress, and Slobogin ‑‑ Correct?
  3. Please consider Melton, Petrila, Poythress, and Slobogin further comments regarding psychological testing an custody evaluations:

– [ read ] –

“Thus, apparent practices notwithstanding, we recommend the use of traditional psychological tests only when specific problems or issues that these tests were designed to measure appear salient in the case.”

Now my question: When Melton, Petrila, Poythress, and Slobogin say, “Thus, apparent practices notwithstanding …” they are acknowledging that practicing psychologists frequently rely on psychological tests in custody evaluations ‑‑ Correct?

  1. Please consider Melton, Petrila, Poythress, and Slobogin further comments regarding psychological testing an custody evaluations:

– [ read ] –

“… we recommend the use of traditional psychological tests only when specific problems or issues that these tests were designed to measure appear salient in the case.”

Now my question: This generally recognized text in forensic psychology recommends a limited and circumscribed use of psychological tests in custody evaluations ‑‑ Correct?

  1. You have not published anything in peer‑reviewed journal necessitating that we reconsider the position of Melton, Petrila, Poythress, and Slobogin ‑‑ Correct?
  2. You cannot cite anything published in a peer‑reviewed journal necessitating that we reconsider the position of Melton, Petrila, Poythress, and Slobogin ‑‑ Correct?
  3. Therefore, Dr. X, your use of psychological testing in this custody evaluation may deviate from the standards of practice recommended by authoritative sources in your field ‑‑ Correct?
  4. And however frequently practicing psychologists use psychological tests in custody evaluations, that does not mean there are data available in peer‑reviewed journals to support those practices ‑‑ Correct?

__________________________________________________________________________________________________________________________

[1].      The frequency and nature of psychological testing used in the course of custody evaluations varies widely.  Studies that are available on this topic include: Keilin, W.G. & Bloom, L.J. (1986).  Child Custody Evaluation Practices: A Survey of Experienced Professionals, 17 Professional Psychology: Research & Practice, 338-46; P. Lees-Haley, P. (1992). Psychodiagnostic Test Usage by Forensic Psychologists, 10 American Journal of Forensic Psychology, 25-30; and  Heilbrun, K.  & Collins, S. (1995).  Evaluations of Trial Competency and Mental State at the Time of the Offense: Report Characteristics, 26 Professional Psychology: Research & Practice, 61-67.  One conundrum in this area is the automated administration, scoring, and interpretation of tests that increase the risk that psychological tests will be misused by mental health professionals who do not have the requisite expertise and knowledge.See, e.g.:Ryabik, J.E.  & Olson, K. R. (1985). Computer­ized Testing, 16 Professional Psychology: Research & Practice, 6; Skinner, H.  & Pakula, A (1986). Challenge of Computers in Psychological Assessment, 17 Professional Psychology Research and Practice pg 44; Matarazzo, J.D. (1986).  Computerized Clinical Psychological Test Interpretations: Un validated Plus All Mean and No Sigma, 41American Psychologist 14, 17; Fowler , R.D. & Butcher,J. N. (1986).  Critique of Matarazzo’s Views on Computerized Testing: All Sigma and No Meaning, 41 American Psychologist 94, 95; Eyde, L.D.  & Kowal,D.M. (1987).  Computerized Test Interpretation Services: Ethical and Professional Con­cerns Regarding U.S. Producers and Users, 36 Applied Psychol.: an Interna­tional Review, 401, 406.

[2].       Grisso, T. (1987). The economic and scientific future of forensic psychological assessment. American Psychologist, 42, 831-839.

[3].       Weithorn, L. (1987). Psychological evaluations in divorce custody: Problems, principles, and procedures. In L. Weithorn (Ed). Psychology and child custody determinations: Knowledge, roles, and expertise. Lincoln, NE: U of Nebraska Press.

[4].       Schutz, B., Dixon, E., Lindenberger, J., & Ruther, N. (1989). Op cit. See, also: Heilbrun, K (1995). Child Custody Evaluation: Critically Assessing Mental Health Experts and Psychological Tests,29  Family Law Quarterly # 1 Spring 63-78 advocating: that the chosen tests must be “commercially available and adequately documented in two sources. First, it is accompanied by a manual describing its development, psychometric properties, and procedure for administra­tion. Second, it is listed and reviewed in Mental Measurements Yearbook, or some other readily available source.” pg 73.

[5].       Brodzinsky, D.M. (1993). On the use and misuse of psychological testing in child custody evaluations. Professional Psychology: Research and Practice, 24, 213-219 (p. 216).

[6].       Melton, G.B., Petrila, J., Poythress, N.G., & Slobogin, C. (1997). Psychological evaluations for the courts-2nd Ed. New York: Guilford Press. (p. 503).

Dual Relationships and Ethical Obligations

Posted on by Shawn Wygant

Dual relationships inevitably involve conflicts of interest. Just as an attorney cannot represent the business interests of a client in one matter, and also represent that client’s spouse in a divorce action, mental health professionals are prohibited from engaging in similar conflicts of interest.  At PsychLaw.net we take for example, Standard 1.06 (c) of the Code of Ethics for social workers states:

“Social workers should not engage in dual or multiple relationships with clients or former clients in which there is a risk of exploitation or potential harm to the client.  In instances when dual or multiple relationships are unavoidable, social workers should take steps to protect clients and are responsible for setting clear, appropriate, and culturally sensitive boundaries.  (Dual or multiple relationships occur when social workers relate to clients in more than one relationship, whether professional, social, or business.  Dual or multiple relationships can occur simultaneously or consecutively).”[1]

Similarly, the ethical code for marriage and family therapists also prohibits dual relationships.  Standard 1.2 of the Code of Ethics of the American Association for Marriage and Family Therapy states:

“Marriage and family therapists are aware of their influential position with respect to clients, and they avoid exploiting the trust and dependency of such persons.  Therapists, therefore, make every effort to avoid dual relationships with clients that could impair professional judgment or increase the risk of exploitation.  When a dual relationship cannot be avoided, therapists take appropriate professional precautions to ensure that judgment is not impaired and no exploitation occurs.  Examples of such dual relationships include, but are not limited to, business or close personal relationships with clients.”[2]

The ethical code for psychologists also prohibits dual relationships.  Standard 1.17 (a‑c) of the code of ethics for the American Psychological Association ‑ addressing “Multiple Relationships” ‑ states:

“(a) In many communities and situations, it may not be feasible or reasonable for psychologists to avoid social or other nonprofessional contacts with persons such as patients, clients, students, supervisees, or research participants.  Psychologists must always be sensitive to the potential harmful effects of other contacts on their work and on those persons with whom they deal.  A psychologist refrains from entering into or promising another personal, scientific, professional, financial, or other relationship with such persons if it appears likely that such a relationship reasonably might impair the psychologist’s objectivity or otherwise interfere with the psychologist’s effectively performing his or her functions as a psychologist, or might harm or exploit the other party.

(b) Likewise, whenever feasible, a psychologist refrains from taking on professional or scientific obligations when preexisting relationships would create a risk of such harm.

(c) If a psychologist finds that due to unforeseen factors, a potentially harmful multiple relationship has arisen, the psychologist attempts to resolve it with due regard for the best interests of the affected person and maximal compliance with the Ethics Code.”[3]

Additionally, at PsychLaw.net we look to the ethical standards regarding the “Forensic Activities” of psychologists ‑ specifically Standard 7.03 addressing “Clarification of Role” ‑ states:

“In most circumstances, psychologists avoid performing multiple and potentially conflicting roles in forensic matters.  When psychologists may be called on to serve in more than one role in a legal proceeding ‑ for example, as consultant or expert for one party or for the court and as a fact witness ‑ they clarify the role expectations and the extent of confidentiality in advance to the extent feasible, and thereafter as changes occur, in order to avoid compromising their professional judgment and objectivity and in order to avoid misleading others regarding their role.”[4]

Similarly, the Specialty Guidelines for Forensic Psychologists indicate the following:

“Forensic psychologists avoid providing professional services to parties in a legal proceeding with whom they have personal or professional relationships that are inconsistent with the anticipated relationship.

When it is necessary to provide both evaluation and treatment services to a party in a legal proceeding (as may be the case in small forensic hospital settings or small communities), the forensic psychologist takes reasonable steps to minimize the potential negative effects of these circumstances on the rights of the party, confidentiality, and the process of treatment and evaluation.” (p. 659).[5]

The Ethical Guidelines for the Practice of Forensic Psychiatry, adopted by the American Academy of Psychiatry and the Law state:

“A treating psychiatrist should generally avoid agreeing to be an expert witness or to perform an evaluation of his patient for legal purposes because a forensic evaluation usually requires that other people be interviewed and testimony may adversely affect the therapeutic relationship.”[6]

Quite obviously, then, the ethical obligations of mental health professionals preclude them from testifying as expert witnesses in matters involving their patients.  A 1997 article perceptively outlined these considerations in the following manner:

“Engaging in conflicting therapeutic and forensic relationships exacerbates the danger that experts will be more concerned with case outcome than the accuracy of their testimony.  Therapists are usually highly invested in the welfare of their patients and rightfully concerned that publicly offering some candid opinions about their patient’s deficits could seriously impair their patient’s trust in them.  They are often unfamiliar with the relevant law and the psycho legal issues it raises.  They are often unaware of much of the factual information in the case, and much of what they know comes solely from the patient and is often uncorroborated.  What they do know, they know primarily, if not solely, from their patient’s point of view.  They are usually sympathetic to their patient’s plight, and they usually want their patient to prevail.”[7]

We at PsychLaw.net would also indicate there is nothing inappropriate about treating therapists testifying as fact witnesses regarding their patients.  Testifying as a fact witness, however, necessitates that treating therapists clearly recognize the limits of their testimony as a result of their therapeutic role.  When asked to express an opinion directly related to the legal matter at hand, treating therapists are obligated to acknowledge their limitations.  Surprising as it may seem, most therapists have not carefully considered the inevitable conflicts between expert witness and treating therapist.  Therefore, legions of treating therapists are more than ready to take a witness stand and testify as expert witnesses.[8]  When cross‑examination directs a treating therapist’s attention to the dual relationship problems involved, many therapists reluctantly acknowledge these problems. Consider, for example, how a psychologist responded to the following cross‑examination.

Attny:         Aren’t you obligated to acknowledge that your therapist role with Mr. Smith, and any proposed role for you as an expert witness, involves a dual relationship?

Psych:         Yes.  A dual relationship does exist at times between treating professionals who treat and also testify.

Attny:         Just a moment ago you acknowledged that if the court recognizes you as an expert, you’re obligated to testify objectively, candidly, and forthrightly; correct?

Psych:         Yes.

Attny:         However, testifying objectively, candidly, and forthrightly could threaten any past or future therapeutic alliance; correct?

Psych:         Mr. Smith is not in treatment with me.

Attny:         Isn’t it true that testifying as an expert could threaten a past or future therapeutic alliance between Mr. Smith and you?

Psych:         Mr. Smith and I have no plans to resume the treatment relationship … and there’s no way that I know of to threaten a past treatment relationship through being an expert    witness.

Quite obviously, the psychologist could not guarantee that Mr. Smith would never return to seek her services as a therapist.  Consequently, her testifying as an expert witness created a substantial risk of a dual relationship. At PsychLaw.net we feel that well informed professionals recognize such risks and avoid them.

Conversely, other mental health professionals clearly overstep the limits of their responsibilities as evaluators.  Consider, for example, how the following psychologist trapped himself into a dual relationship.  This psychologist had undertaken an evaluative role in a child custody dispute.  The psychologist had no therapeutic responsibilities whatsoever.

Attny:         Did you ever say to any third person, and by third person I mean someone other than the minor child, state that in the event this case goes to a full hearing, you are going to testify and recommend a reduction in Ms. Smith’s parenting time, lower than what she is receiving?

Psych:         I may have.

Attny:         Did you intend that as a penalty of some sort for going forward with this hearing because you view going forward as not in the minor child’s best interest?

Psych:         No sir.

Attny:         So, in other words, if this case goes to trial and you testify, you expect your testimony to be “I want her [Ms.Smith] to have less parenting time than what she currently has and less than I have recommended in my report” is that what you intended to do?

Psych:         No.  What I intended to do, and what my report was meant to do, was kind of warn the parties that this situation has to change.  I try in my reports not only to report my findings and opinions, but if I have an opportunity, to try and educate in a sense.

When this psychologist sought to “educate” one of the parties, he backed himself into a dual relationship.  His responsibilities were limited to reporting his “findings and opinions.”  Attempting to “educate” one of the parties is obviously inconsistent with confining oneself to evaluative responsibilities. At PsychLaw.net we feel the following cross‑examination outline will effectively alert judges to the inappropriateness of treating therapists testifying as experts.

Cross‑Examination Regarding Treating Therapist and Expert Witness

  1. X, you are familiar with the ethical standards of your profession ‑‑ Correct?
  2. And of course you are familiar with ______ [hold up, and read title from Dr. X’s professional group=s ethical standards].
  3. X, your profession generally recognizes that “dual relationships” with a patient are fundamentally unethical ‑‑ Correct?
  4. Dual relationships prevail when one relates to a patient in multiple capacities ‑‑ Correct?
  5. Relating to a patient as both therapist and business partner would be an example of a dual relationship ‑‑ Correct?
  6. Your profession’s code of ethics prohibits you from involving yourself in dual relationships with your patients ‑‑ Correct?
  7. [Read selected portions of the relevant ethical code addressing dual relationships] And so Dr., you are bound by these requirements ‑‑ Correct?
  8. And ultimately, then, dual relationships are unethical because of their potential to harm patients ‑‑ Correct?
  9. If I am your patient ‑ and we also involve ourselves in some business venture ‑ I could get confused about whether you are relating to me as therapist or business partner ‑‑ Correct?
  10. And that kind of confusion could damage me because I might feel that business considerations have led you to change how you relate to me as my therapist ‑‑ Correct?
  11. Now Dr. X, I would like you to consider your obligations as a treating therapist. The relevant research clearly demonstrates that a “therapeutic alliance” is necessary for effective psychotherapy ‑‑ Correct?
  12. A therapeutic alliance means that you and your patient are aligned together pursuing the same therapeutic goals ‑‑ Correct?
  13. A therapeutic alliance allows your patient to feel confident that you ‑ as the therapist ‑ are genuinely committed to his or her welfare ‑‑ Correct?
  14. Therapeutic alliances also involve a degree of therapist empathy ‑‑ Correct?
  15. In response to an empathic therapist, patients feel that their therapist understands them, as they understand themselves ‑‑ Correct?
  16. In response to a therapeutic alliance, patients also feel that their therapist relates to them in a nonjudgmental manner ‑‑ Correct?
  17. And this nonjudgmental manner of the therapist typically involves acceptance of the patient ‑‑ Correct?
  18. When building a therapeutic alliance, therapists recognize the priority of the patient’s welfare ‑‑ Correct?
  19. In your opinion, you have established a positive therapeutic alliance with your patient, Mr. Smith ‑‑ Correct?
  20. Now, you understand that if you are recognized as an expert witness, you are obligated to testify objectively, candidly, and forthrightly ‑‑ Correct?
  21. You do understand those obligations of candor, forthrightness and objectivity ‑‑ Correct?
  22. X, aren’t you obligated to acknowledge that your previously assumed role as Mr. Smith’s treating therapist, and your proposed role as an expert witness, involves a dual relationship?
  23. Just a moment ago, you acknowledged that if this Court recognizes you as an expert witness, you are obligated to testify objectively, candidly, and forthrightly ‑‑ Correct?
  24. However, testifying objectively, candidly, and forthrightly could threaten the therapeutic alliance between you and your patient, Mr. Smith ‑‑ Correct?
  25. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling that the two of you are no longer aligned together pursuing the same goals ‑‑ Correct?
  26. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling you are no longer committed to his welfare ‑‑ Correct?
  27. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling that you no longer understand him and his circumstances as he does ‑‑ Correct?
  28. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling that you no longer relate to him in a nonjudgmental manner ‑‑ Correct?
  29. Testifying objectively, candidly, and forthrightly could leave Mr. Smith feeling that you no longer regard him with acceptance ‑‑ Correct?
  30. And in this specific legal proceeding, your patient ‑ Mr. Smith ‑ prefers a particular outcome ‑‑ Correct?
  31. And to the extent you enjoy a therapeutic alliance with Mr. Smith ‑ aligned together pursuing the same therapeutic goals ‑ you would prefer the same outcome related to this legal proceeding ‑‑ Correct?
  32. And if you prefer a particular outcome from this proceeding ‑ an outcome that would benefit your patient ‑ it becomes basically impossible for you to testify objectively, candidly, and forthrightly ‑‑ Correct?
  33. Therefore, Dr. X, would you agree that in view of your treatment relationship with Mr. Smith as his treating therapist, your testifying as an expert witness in this proceeding constitutes a dual relationship? And again for clarification purposes, your profession’s ethical code specifically prohibits you from entering into a dual relationship with your patients ‑‑ Correct?

_______________________________________________________________________________________________________________________

[1].       National Association of Social Workers (1996, August 15).  Code of Ethics.  Adopted by the NASW Delegate Assembly, Washington, DC, August 15, 1996, Effective January 1, 1997 (p. 2).

[2].       American Association for Marriage and Family Therapy. (Aug/Sept 1998).  AAMFT Code of Ethics – Eff July 1, 1998.  Family Therapy News, (p. 10).

[3].       American Psychological Association (1992).  Ethical principles of psychologists and code of conduct.  American Psychologist, 47, 1597,1611 (p. 1601).

[4].       American Psychological Association (1992).  Op cit., (p. 1610).

[5].       Committee on Ethical Guidelines for Forensic Psychologists (1991).  Specialty guidelines for forensic psychologists.  Law and Human Behavior, 15, 655-665.

[6].       American Academy of Psychiatry and the Law (1998).  Ethical guidelines for the practice of forensic psychiatry.  In Membership directory of American Academy of Psychiatry and the Law (pp. x-xiii).  Bloomfield, CT: Author.

[7].       Greenburg, S.A. & Shuman, D.W. (1997).  Irreconcilable conflict between therapeutic and forensic roles.  Professional Psychology: Research and Practice, 28, 50-57 (p. 56).

[8].       Remember, “objectivity” implicates competence.  See, ie: Malbrew v. Port Barre Mills, Inc., 693 So. 2d 259 (La. Ct. App. 1997) (noting that the only witness qualified to testify as to the claimant’s mental injury or illness was a clinical psychologist.  Two treating orthopedists, claimant’s treating physician and two treating psychiatrists were not competent).

Who Qualifies as An Expert?

Posted on by Shawn Wygant

Federal Rule of Evidence 702 states:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”[1]

At PsychLaw.net we remember that because it carries such an “aura of infallibility,” [2]  scientific testimony can create difficult problems for our courts.   Summarizing the literature, one respected commentator has written:

“[t]here is virtual unanimity among courts and commentators that evidence perceived by jurors to be ‘scientific’ in nature will have particularly, persuasive effect.” [3]

Just who is an expert?   Professor Margaret Berger, Associate Dean and Professor of Law at Brooklyn School of Law, recommends a “Two-Pronged Test”:[4]

“To ascertain whether a proposed expert is qualified to act as a witness, a court must undertake a two-step inquiry:

  1. The court should determine whether the proffered expert has minimal educational or experiential qualifications in a field that is relevant to a subject which will assist the trier of fact.
  1. If the expert passes this threshold test, the court should further compare the expert’s area of expertise with the particular opinion the expert seeks to offer. The expert should be permitted to testify only if the expert’s par­ticular expertise, however acquired, enables the expert to give an opin­ion that is capable of assisting the trier of fact.” Ibid.

Despite erudite descriptions such as Professor Berger’s, others have observed: “In practice, an expert is whoever the court wants to recognize.”[5]  This “practice” has found our courts admitting some exceedingly questionable expert testimony.  For example, In re Estate of Hoover, 615 N.E.2d 736 (Ill. 1993) affirmed the right of litigants to offer a psychiatric witnesses to give an opinion on the issue of undue influence and competency to testify at trial.  Because the psychiatrist never examined the decedent, his testimony relied on a “psychiatric autopsies”.  In doing so, he never saw the patient about whom he expressed opinions.

Indeed, a  number of courts have upheld litigant’s rights to have people skilled in social science measurement testify.  Some courts have allowed testimony regarding consumer preferences or habits.  Experts in these cases have relied on survey evidence, testifying on subjects as arcane as product confusion.[6]

Unfortunately, we at PsychLaw.net realize the qualifications of an expert has rarely been an issue on appeal.[7]

Perhaps some of these alarming circumstances built the tide that came ashore as Daubert and Kuhmo Tire.  Since these notable cases, a number of courts have begun to draw a line.  One important opinion came out of New Hampshire.  In Hoffinan LaRoche, Inc., 907 F. Supp. 33 (D.N.H. 1995), the federal district judge held that the mere fact that a scientific expert testifies that a scientific fact is generally accepted is insufficient, in and of itself, to estab­lish that conclusion.  As a result, we at PsychLaw.net recommend the following issues for consideration when reviewing the status of a proposed expert.

 Treating Therapist vs. Expert Witness

Given Federal Rule 702, and its state variations, it would seem that an appropriately licensed, or certified, treating therapist would qualify as an expert witness. Treating therapists typically have considerable contact with their patients; and as a result, appear eminently qualified to express opinions regarding the people they treat.  In fact, this is an example of how appearances can deceive. Ultimately a mental health professional’s status as a treating therapist precludes their qualifying as an expert witness.

 Therapeutic Alliance vs. Objectivity

We at PsychLaw.net remind the reader that in any legal proceeding, an expert witness is obligated ‑ above all else ‑ to testify in an objective and candid manner.  In their relationships with their patients, however, treating therapists value a “therapeutic alliance” more than objectivity and candor.[8]  Therapeutic alliances develop over the course of treatment allowing patients to feel that their therapist is genuinely committed to their welfare.[9]

In response to a therapeutic alliance with their therapist, patients feel that the therapist understands them ‑ and their life circumstances ‑ as the patients themselves comprehend those issues.  Therapeutic alliances also involve patients regarding their therapist as a warm, nonjudgmental figure.[10]  The relevant research clearly demonstrates that a therapeutic alliance is a necessary condition for effective treatment.[11]  Without a therapeutic alliance prevailing between therapist and patient, treatment will fail.[12] In 1992, the first author pointed out the inevitable conflicts between the roles of treating therapist and expert witness (or evaluator).

“Ultimately, therapists find it difficult to competently evaluate their clients ‑ a therapeutic alliance between client and therapist inevitably reduces the therapist’s objectivity.  Conversely, evaluators find it difficult to respond therapeutically to the subjects of their evaluations ‑ neutrality and objectivity mitigate against therapeutic alliances.  As a result, it is the rare therapist who can respond simultaneously and effectively to both therapeutic and evaluative responsibilities.  Psychologists who ignore these limitations can find themselves trapped in the ethical pitfalls of dual relationships.”[13]

_________________________________________________________________________________________—

[1].       Melton, G.B., Petrial, J., Poythress, N.G. & Slobogin, C. (1997).  Psychological evaluations for the courts – 2nd Ed. New York: Guilford Press (p.16).

[2].       The “Aura of scientific infallibility@ quotation is from Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States. a Half-Century Later, 80 Colum. L Rev. 1197, 1237 (1980).

See also: Barefoot v. Estelle, 463 U.S. 880, 926 (1983) (Blackmun, J., dissenting); United States v. Anderson, 851 F.2d 384, 393 (D.C. Cir. 1988), cert denied, 488 U.S. 1012 (1989) (prejudicial impact of expert testimony offered against the accused); United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir. 1973) (prejudicial impact of expert testimony offered by criminal defendant in support of a defense).

See also:

Giannelli, Paul C. (1993) AJunk Science@: The Criminal Cases, 84 J. Crim. L & Criminology 105,122-­23 (concludes that “[w]ithout an effective right to defense experts, the accused often lacks the resources to combat junk science”).

See also:

Vidmar, N.J. & Schuller, R. A. (1989). Juries and Expert Evidence: Social Framework Testimony, LAW & CONTEMP. PROBS., Autumn, at 133, 166 And see: e.g., Commonwealth v. Garcia, 588 A.2d 951, 955 (Pa. Super. Ct. 1991), appeal denied, 604 A.2d 248 (Pa. 1992) (“Jurors 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].       Strong, John W. (1992). Language and Logic in Expert Testimony Limiting Expert Testimony by Restrictions of Function, Reliability, and Form, 71 OR. L. Rev. 349, 361.

[4].       Berger, M.A. (1994). Evidentiary Framework, In. Reference Manual on Scientific Evidence. New York: Federal Judicial Center. Pg 38-117 (p. 55).

[5].       Englade, K. (1990).  Mad Science: When It Comes to Psychological Testimony, Everybody’s an Expert. So Who a Does a Jury Believe?, 32 STUDENT LAW. 31, 33.

[6].       Upjohn Co. v Rachelle Laboratories. Inc., (1981. CA6 Mich) 661 F2d 1105, 1111, 1112 (on the basis of a survey of 40 sales people, market development manager for drug com­pany  testified on approximate cost in salesmen’s time of drug recall effort.  The trial court emphasized the experience of the witness, expense and effort in survey design, and that expert was available for cross).

[7].       Whitcomb, D. (1992).  When The Victim Is a Child 20 (2d Ed. 1992).Washington, D.C.: U.S. Dep’t of Justice.

[8].       Horvath, A.O. & Lubrorsky, L. (1993).  The role of the therapeutic alliance in psychotherapy.  Journal of Consulting and Clinical Psychology, 61, 561-573.

[9].       Whiston, S.C. & Sexton, T.L. (1993).  An overview of psychotherapy outcome research:  Implications for practice.  Professional Psychology: Research and Practice, 24, 43-51.

[10].     Truax, C.B. & Mithchell, K.K. (1971).  Research on certain interpersonal skills in relation to process and outcome.  In A.E. Bergin & S.L. Garfield (Eds), Handbook of psychotherapy and behavior change: An empirical analysis. New York: John Wiley.

[11].     Luborsky, L., Crits-Christoph, P., Mintz, J. & Auerbach, A. (1988).  Who will benefit from psychotherapy?  Predicting therapeutic outcomes.  New York: Basic Books.

[12].     Truax, C.B. & Carkhuff, R.R. (1967).  Toward effective counseling and psychotherapy.  Chicago: Aldine.

[13].     Campbell, T.W. (1992).  Psychotherapy with children of divorce: The pitfalls of triangulated relationships.  Psychotherapy, 29, 646-652 (p. 651).

Gatekeeping with the Behavioral Sciences

Posted on by Shawn Wygant

With the conclusion of the Daubert trilogy,[1] our courts face the daunting task of applying criteria of validity[2] and reliability[3] to all proposed expert testimony.[4]  This comes at a time when testimony from the behavioral sciences[5] is growing at an exponential rate.[6]  Unfortunately, research demonstrates that our courts are not prepared for this important task.[7]  Certainly, our courts are not in a position to become amateur scientists,[8] and the costs involved in hiring neutral “expert” experts [9] is clearly prohibitive in most cases.

Fortunately, at PsychLaw.net we find that the relevant research demonstrates that with access to the tools of scientific reasoning, judgments concerning validity and reliability dramatically improve.[10] But where the courts’ have sought to educate themselves for their gatekeeping responsibilities, a difficult tension has developed because of the strictures against the acquisition of knowledge ex parte.[11]

The intersection of the behavioral sciences and law is not new.  Behavioral scientists have been informing legal proceedings for hundreds of years.  Indeed, since the twelfth century the law has recognized mental incapacity as a defense to criminal conduct.[12] Then, the testimony of mental health professionals was first reviewed by the United States Supreme Court in 1908 in Muller v. Oregon, 208 U.S. 412 (1908).  Since then, behav­ioral science expertise has been applied to a wide variety of situations where litigant characteristics may be in issue.

For as long as mental status has been legally relevant in criminal prosecutions, behavioral scientists have been asked to address a defendant’s mental state both at the time of the crime, and at the time of the trial.[13]  Behav­ioral scientists have been asked to provide expert testimony concerning whether an individual’s behavior and characteristics fit within a par­ticular profile (e.g., as a drug courier);[14] or whether the individual experienced delayed memories of  childhood sexual abuse;[15] or whether a child sexual abuse survivor was experiencing a syndrome.[16]

For example, at PsychLaw.net  we look to a recent text Psychological Evaluations for the Courts which describes nine types of competency examinations, six mental state defenses, five sentencing evaluations, eight civil commitment exams and eighteen additional psychological evaluations courts routinely ask for.[17] Assessments of dangerousness serve as additional examples of the legal system seeking guidance from the behavioral sciences.   Assessing dangerousness typically addresses whether the individual is presently dangerous, or likely to be dangerous in the future.[18]  Decisions involving a finding of dangerousness in­clude:

  1.  Decisions to grant bail, and the level at which bail is set;
  2. Decisions concerning the waiver of juveniles charged with serious crimes in adult courts;
  3. Sentencing decisions following criminal convictions, including release on probation;
  4. Decisions regarding work-release and furlough programs for in­carcerated offenders;
  5. Parole and other conditional-release determinations for offenders;
  6. Decisions regarding whether to remove a child from the home in child abuse or bat­tery cases;
  7. Decisions to commit or release persons committed under quasi-criminal statutes for sex offenses;
  8. Resolutions to civilly commit criminal defendants after having been found incompetent to stand trial or when found not guilty by reason of insanity and release procedures for these individuals;
  9. Decisions regarding the special handling of disruptive prisoners;
  10. Decisions regarding the transfer of civilly committed patients to hospitals with security;
  11. Commitment of drug addicts;
  12. Findings concerning the emergency and long-term involuntary commitment of the mentally ill;
  13. Decisions con­cerning conditional and unconditional release of involuntary committed mentally ill pa­tients;
  14. Decisions concerning the continuing hospitalization of criminal defendants found not guilty by reason of insanity;
  15. Decisions to employ special legal provisions or sentencing proceedings for habitual offenders; and
  16. Decisions to impose the death penalty.[19]

The value of behavioral science information is not limited to understanding mentally ill persons, dangerous persons, or other populations of concern to the law.  Expertise from the behavioral sciences can be used to address the characteristics of litigants in numerous situations. Indeed, the US Supreme Court has dealt with behavioral science evidence many times.  For instance, in Lockhart v McCree, 476 US 162, 106 S Ct 1758 (1986), the Court was asked to consider the constitutional significance of the behavioral science research that described capital juries as biased in favor of the prosecution.  Jurors who could not impose the death penalty were being systematically removed from capital panels.[20]  The relevant research demonstrated that this later group of jurors were less inclined to convict defendants in capital cases.

Today, judges are required to work hard to understand behavioral science data.  In Daubert v Merrell Dow Pharmaceuticals Inc., 509 U S 579, 113 S Ct 2786, (1993), the United States Supreme Court held that:

“…the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 113 S Ct at 2795.

Compared to lay witnesses, experts purport to offer testimony that is scientific.  Justice Blackmun indicated that by using the term “scientific”, the witness implies a “grounding in the methods and procedures of science”. Id. 113 S Ct at 2795.  The word “knowledge”, the Court instructed, “connotes more than subjective belief or unsupported speculation”. Id.  The Court made it clear that:

“…in order to qualify as ‘scientific knowledge’, an inference or assertion must be derived by the scientific method.  Proposed testimony must be supported by appropriate validation – i.e., ‘good grounds’, based on what is known.” Id.113 S Ct at 2795.

Basing its rule as to admissibility on reasoning and methodology, the Court quoted from a learned treatise and offered:

“Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.” Id. 509 U S 579, 113 S Ct at 2796.

The Court instructed that there is now a “Key Question” which must be answered and that is:

“..whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested…” emphasis added Id. 509 U S 579, 113 S Ct at 2796.

The Court’s instruction to the trial courts was that when “expert”, “scientific” testimony is offered:

“..the trial judge must determine at the outset, pursuant to Rule 104 (a), whether the expert is proposing to testify to (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 properly can be applied to the facts in issue.” Id. 509 U S 579, 113 S Ct at 2796.

 Because experts are permitted wide latitude in their opinions and are not required to base their pronouncements on first-hand knowledge, the Court required that “the expert’s opinion must have a reliable basis in the knowledge and experience of his discipline”.  113 S Ct at 2796.  We at PsychLaw.net  find that in this analysis, courts are required to excuse proposed experts who do not have a grasp of the “knowledge and experience of [their] discipline”.

Emphasizing that the  “focus….must be solely on principles and methodology” 509 U S 579, 113 S Ct at 2797,  the Court’s analysis cites to United States v Smith, 869 F2d 348, 353-354 (CA7 1989) and informs that “error  rate” in the predictions and techniques espoused in the opinions of the experts must be considered. Id. 509 U S 579,  S Ct at 2797; 125 L Ed 2d at 483.

Grounding its admissibility analysis in the principles and methodology of science, the Court notes:

“….that scientists typically distinguish between ‘validity’ (does the principle support what it purports to show?) and ‘reliability’ (does application of the principle produce consistent results?)…..our reference here is to evidentiary reliability–that is, trustworthiness…..In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.” Daubert 509 U S 579, 113 S Ct at 2795 n. 9, emphasis in original.

1  The Daubert trilogy is: Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786 (1993); Joiner v General Elec Co, 78 F3d 524, 529 (CA 11, 1996), reversed as: General Electric Co. v Joiner, 522 US 136; 118 S Ct 512 (1997); Kumho Tire Company, Ltd. v Carmichael, 526 U.S. 137; 119 S.Ct. 1167 (1999).

 2  See: Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786 at 2795; n. 9, (1993) “In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.” emphasis in original. And see: Kumho Tire Company, Ltd. v Carmichael, 526 U.S. 137; 119 S.Ct. 1167 at 1174: Expert testimony must demonstrate a valid connection to the pertinent facts as a precondition to admissibility.

3  See: Daubert 509 U S 579, 113 S Ct 2786 at 2795; n. 9 “…scientists typically distinguish between ‘validity’ (does the principle support what it purports to show?) and ‘reliability’ (does application of the principle produce consistent results?)…..our reference here is to evidentiary reliability–that is, trustworthiness.” And see: Kumho Tire Company, Ltd. v Carmichael, 526 U. S. 137, 119 S.Ct. 1167, at 1176 – 1177 ( 1999): The court must determine both the validity of the expert’s qualifications and the reliability of the proposed testimony.

4  Kumho Tire Company, Ltd. v Carmichael, 526 U. S. 137; 119 S.Ct. 1167; (March, 1999) simply held:  “Daubert…..applies to all expert testimony.”119 S.Ct. 1167 at 1174.

5  By “Behavioral Sciences” we mean all those applied disciplines who base their knowledge and practice on the science of human behavior, including mental, emotional, psycho-physiological and social processes.  For the jurist, these will typically include: psychiatrists, psychologists, social workers, marriage and family therapists, substance abuse counselors, licensed professional counselors, and even pastoral counselors.  There are some behavioral sciences professionals who identify themselves as “therapists” or “psychotherapists.”  In our experience, behavioral science professionals who cannot legitimately identify themselves as psychiatrists or psychologists are more inclined to adopt the “therapist” label. These professionals often assume this designation to compensate for their lack of a doctoral degree.

6  Approximately 86% of civil trials contain expert testimony in some form.

Gross, S.R. & Syverud, K.D. (1991). Getting to no: A study of settlement negotiations and the selection of cases for trial. 90 Michigan Law Review 319. And see: Gross, S.R.(1991). “Expert Evidence”, 1991Wisconsin Law Review 1114, 1119  finding that experts testified in 80% of civil trials studied for the article. See, also: Imwinkelried, E.J. (1994). The Next Step After Daubert: Developing a Similarly Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15 Cardozo Law Review 2271, 2273; and see McClellan, E. (1997). Comment, Sharpening the Focus on Daubert’s Distinction Between Scientific and Nonscientific Expert Testimony, 34 San Diego Law Review 1719, 1721 Asserting that the use of expert testimony has increased proportionately with the increase in technology in society.

7  See, e.g.: Kovera, M.B. and McAuliff, B.D. (2000). The Effects of Peer Review and Evidence Quality on Judge Evaluations of Psychological Science: Are Judges Effective Gatekeepers? 85 Journal of Applied Psychology 574-586. at pg 583: “…the scientific training judges receive is insufficient to help them recognize flawed psychological research….” And see: Lehman, D.R., Lempert, R.O. & Nisbett, R.E. (1988). The effects of graduate training on reasoning: Formal discipline and thinking about everyday life events, 43 American Psychologist  431-443: Judges are not seen to be more skilled in the evaluation of science than lay people.  In fact, Lehman and colleagues demonstrated that legal education does not improve either methodological or statistical reasoning abilities. See, also: Gatowski, S. I.; Dobbin, S.A.; Richardson, J.T.; Ginsburg, G.P.; Merlino, M.L. & Dahir, V. (2001). Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post –Daubert World. 24 Law and Human Behavior 433-458.  This October, 2001 study with a survey frame of “…9,715 state trial court judges from all 50 states and the District of Columbia.”  Concluded that: “…although judges surveyed reported that they found Daubert criteria useful for determining the admissibility of proffered expert evidence, the extent to which judges understand and can properly apply the criteria when assessing the validity and reliability of proffered scientific evidence was questionable at best.”  pg. 452.

8  In Daubert, Chief Justice Rehnquist offered: “I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony.  But I do not think it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role.” 113 S Ct 2786 at 2799. emphasis added.

[9]  In Daubert, the Court referred to Rule 706, which allows a trial judge to call an expert of the judge’s own choosing. 113 S.Ct. 2786 at 2797-98. And see: Memorandum and Order on Motion to Quash Notice of Subpoena in In re Joint E. & S. Dist. Asbestos Litig. (In re Johns-Manville Corp.), 151 F.R.D. 540 (E. & S.D.N.Y.1993); Cecil & Willing, Court Appointed Experts: Defining The Role of Experts Appointed Under Federal Rule of Evidence 706, at 88-95 (Fed.Jud.Ctr.1993).  Further, as Judge Weinstein has pointed out, where the court-appointed expert does not testify at trial, the expert’s role can be characterized as that of “technical advisor” to the court, and depositions of such experts may not be required.  See, e.g.: In re Joint E. & S. Dist. Asbestos Litig. (In re Johns-Manville Corp.), 151 F.R.D. 540 at 544-46; and see also Reilly v. United States, 863 F.2d 149, 157 (1st Cir.1988).

[10]  See, e.g.: Lehman, D.R., Lempert, R.O. & Nisbett, R.E. (1988) The effects of graduate training on reasoning: Formal discipline and thinking about everyday life events, 43 American Psychologist 431-443. And see: Fong, G.T., Krantz, D.H. & Nisbett, R.E. (1986) The effects of statistical training on thinking about everyday problems, 18 Cognitive Psychology  253.

Fong, Krantz and Nisbett demonstrated that research subjects given brief training in methodological reasoning provided more scientifically sophisticated answers to a series of real-world problems.

11 Both Congress and the Judicial Conference of the United States have set general limits on the extent to which judges may acquire potentially prejudicial knowledge.  See, e.g.:  28 U.S.C.  455 (1994).  Section 455 establishes the bases upon which a federal judge, federal magistrate, or Justice of the Supreme Court may be disqualified from presiding over a case:

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding …. Id.  Canon 3(C) of the Code of Conduct for United States Judges disqualifies judges on the same bases.  See Office of the Gen. Counsel, Admin. Office of the U.S. Courts, Code of Conduct for United States Judges 7 (1997).

[12]  See, e.g.: Gray, S.H. (1972). The Insanity Defense: Historical Development and Contemporary Relevance. 10 American Criminal Law Review 555.

[13]  See, e.g.: Perlin, M. (1994). The jurisprudence of the insanity defense. Durham, NC, Carolina Academic Press; And see: See, e.g.: Paull, D. (1993). Fitness to stand trial. Springfield, IL, Charles C. Thomas Publishing Ltd.

[14]  See, e.g.: U.S. v Mendenhall, 446 U.S. 544 (1980).

[15]  See, e.g.: Lindsay &Read (1994).  Incest Resolution Psychotherapy and Memories of Childhood Sexual Abuse: A Cognitive Perspective, 8 Applied Cognitive Psychology 281-292. And see: Lorandos, D. and Campbell, T. (1995) Myths and Realities of Sexual Abuse Evaluation and Diagnosis: A Call for Judicial Guidelines.7 Issues in Child Abuse Accusations 1.

 [16]  State v Foret, 628 So2d 1116, 1127 (1993) the child sexual abuse accommodation syndrome – inadmissible.

[17]  Melton, G.B., Petrila, J., Poythress, N.G. and Slobogin, C. (1997) (2nd ed.) Psychological Evaluations for the Courts. New York – Guilford Press.  These authors describe well over forty situations in which courts routinely ask psychologists for evaluations:

  1. Criminal Matters – A. Competency – 1.Competency to stand trial – 2.Competency to consent to a search or seizure – 3.Competency to confess – 4.Competency to plead guilty – 5.Competency to waive right to counsel – 6.Competency to refuse an insanity defense – 7.Competency to testify – 8.Competency to be sentenced – 9.Competency to be executed – B. Mental State at Time of Offense – 1.Insanity defense – 2.Automatism defense – 3.Mens Rea (Diminished capacity) – 4.Self-defense, provocation, duress, and entrapment – 5.Defenses based on intoxication – 6.The “guilty by mentally ill plea” – C. Sentencing 1.Repeat offender statutes – 2.Sexual offender statutes – 3.Youthful offenders – 4.Drug dependent offenders – 5.Capital sentencing – II. Civil Matters – A. Civil Commitment – 1.Mental disorder – 2.Capacity to make treatment decisions – 3.Danger to others – 4.Danger to self – 5.Grave disability / inability to care for self – 6.Need for treatment – 7.Least restrictive alternative – 8.Outpatient commitment – B. Civil Competencies – 1.Guardianship – 2.Testamentary capacity – C. Compensating Mental Injuries: Workers’ Compensation and Torts – 1.Worker’s Compensation law – 2.The tort of emotional distress – D. Federal Anti-discrimination and Entitlement Laws – 1.Americans with Disabilities Act – 2.Fair Housing Amendments Act – 3.Social Security Laws – III. Children and Families – A. Juvenile Delinquency – 1.Competency – 2.Amenability to treatment – B. Child Abuse and Neglect – 1.Legal definitions of child maltreatment (physical abuse, physical neglect, sexual abuse, emotional abuse and neglect.) – 2.Termination of parental rights – C. Child Custody and Divorce – 1.Best-interests standard – 2.Least detrimental alternative -3.Primary-caretaker standard – 4.Joint custody (physical and/or legal).

[18]  See, e.g.:Slobogin, –  A Jurisprudence of Dangerousness as a Criterion in the Criminal Process. In Sales, B.D. & Shuman, D. (Eds.) (1995).  Law, Mental Health, and Mental Disorder,  Pacific Grove, CA: Brooks/Cole Publishing.

[19]  See : Zenoff, E.H. (1985) Controlling the Dangers of Dangerousness: The ABA Stan­dards and Beyond, 53 George Washington Law Review 562 Stating that “[a]ssessments and predictions of dangerousness permeate every stage of the criminal justice, juvenile justice, and mental health systems.”

[20]  See e.g.: Faden, R., Beauchamp,T. & King,N. (1986)  A History and Theory of Informed Consent, New York: Oxford University Press.

[21] Spaulding, (1985) Testamentary Competency: Reconciling Doctrine with the   Role of the Expert, 9 Law and Human Behavior 113.

[22]  See e.g., People v. Nelson, 4 10 N.E.2d 476 (III.App. 1980).

[23] See e.g.: Lipton, (1988) A New Look at the Use of Social Science Evidence in Trademark Litigation, 78 Trademark Reporter 32.

[24]  See e.g., Ballew v. Georgia, 435 U.S. 223 (1978).

[25]  See e.g., U.S. ex rel. Free v. Mginnis, Peters and Burns, 818 F.Supp. 1098 (1992).

[26]  See e.g., Johnson v. Louisiana, 406 U.S. 356 (1972).

[27]  Most famous of the studies in this realm are the “Baldus data” used by civil rights groups in an effort to show that states apply the death penalty in a racially discriminatory fashion. Baldus, Woodruff and Pulaski (1990) Equal Justice and the Death Penalty Boston: Northeastern University Press.

[28]  Compare:  Ewing, C.P. (1990) Psychological Self-­Defense: A Proposed Justification for Battered Women Who Kill, 14 Law & Human Behavior 579  with: Morse, S.J. (1990)  The Misbegotten Marriage of Soft Psychology and Bad Low: Psychological Self-Defense as Justification for Homicide, 14 Law & Human Behavior 595. And see: Etlinger, L. (1995) Social Science Research in Domestic Violence Law: A Proposal to Focus on Evidentiary Use, 58 Albany Law Review 1259.  Providing an in depth study of the use and reliability of social science expert testimony in domestic violence cases and stating that there are a number of problems with the use of social science research by courts including research and judicial bias, natural tension between science and the adversary system, inherent problems with social science methodology and limitations of existing evidence rules.

[29]  Compare: Goodman, S.G. et al. (1991) Child Witnesses and the Confrontation Clause: The American Psychological Association’s Brief in Maryland v Craig, 15 Law& Hum. Behav. 13 and Goodman, S.G., et.al. (1992). The Best Evidence Produces the Best Law, 16 Law & Human Behavior 244; with:  Underwager, R. & Wakefield, H. (1992). Poor Psychology Produces Poor Law, 16 Law & Human Behavior 233. See also Rustad, M. & Koeing, T. (1993) The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 North Carolina Law Review 91, 128  Conducting a review of the way partisan organizations distort social science evidence in amici briefs submitted to the Supreme Court and concluding that “(j)unk social science is characterized by quotes from social scientific research taken out of context, misleading statistical presentations, denigration of studies whose results conflicted with the argument, and anecdotes masquerading as social science.”

[30] Compare: McCloskey, M.E. & Egeth, H.E. (1983) Eyewitness Identification: What Can a Psychologist Tell a Jury?, 38 American Psychologist 550; McCloskey, M.E.  et al. (1986) The Experimental Psychologist in Court: The Ethics of Expert Testimony, 10 Law & Human Behavior 1; Elliott, R. (1993)  Expert Testimony About Eyewitness Identification: A Critique, 17 Law & Human Behavior  423;   with:  Loftus, E.F. (1979) Eyewitness Testimony; Loftus, E.F. (1983)  Silence Is Not Golden, 38 American Psychologist 564 ; Kipling D. and Williams, K.D. , et.al. (1992) Eyewitness Evidence and Testimony, in Handbook of  Psychology and Law 141 ( Kagehiro & Laufer, eds., 1992) Kassin,S.M. et al. (1994) Deja Vu All Over Again: Elliott’s Critique of Eyewitness Experts, 18 Law & Human Behavior 203.   See also Bermant,G. (1986) Two Conjectures About the Issue of Expert Testimony, 10 Law & Human Behavior 97. And Kassin, S.M. et al. (1989) The “General Acceptance” of Psychological Research on Eyewitness Testimony: A Survey of the Experts, 44 American Psychologist 1089.

[31]  See, e.g.: Loftus, E.F. (1986). Ten years in the Life of an Expert Witness, 10 Law and Human Behavior 241.

[32] Id at 294; 660 P.2d at 1220-21.  See also: State v McCutcheon, 162 Ariz. 54, 56-58; 781 P.2d 31, 33-35 (1985) (discussing Chapple); State v Poland, 144 Ariz. 388; 388-89; 698 P.2d 183, 193-94 (1985).

[33]  See, e.g.: Rimer, S. (2000) “Life after Death Row” The New York Times Magazine December 10th, 2000 pg 100; Ripley, A. “After Exoneration” Time Magazine December 11th, 2000, pg 96; Reza, H.G. (2001) “In the DNA” California Lawyer April, 2001 pg 16.

[34] Connors, Lundregan, Miller & McEwen. (1996) Convicted by Juries, Exonerated by Science: Case Studies in the  Use of DNA Evidence to Establish Innocence After Trial, Washington, D.C. National Institute of Justice.

[35]  See also: Wolfson. “That’s the man!” Well, Maybe Not: The Case for Eyewitness Identification Testimony.” 26 Litigation 5 (Winter 2000). See, also: Gawande, A. (2001) “Under Suspicion” The New Yorker January 8th, 2001 pg 50. Reporting on research which has found eyewitness   identification errors as high as 80%. And see: Smith, S.M, Lindsay, R.C.L. and Pryke, S. (2000) Postdiction of Eyewitness Errors: Can False Identifications Be Diagnosed? 85 Journal of Applied Psychology 542.

[36]  In Smithers, the Court noted that one study estimated that half of all wrongful convictions result from false identifications.  Id. at 312 note 1 (citing Loftus. (1986) Ten years in the Life of an Expert Witness, 10 Law and Human Behavior 241. It is noteworthy that the court cited old data. More recent studies, supported by DNA evidence demonstrate that the rate of wrongful conviction based upon faulty eyewitness identification is staggering.