Category: Daubert

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]

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[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).