Category: Motion Practice

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.

Key Kumho Tire Concepts

Posted on by Shawn Wygant

Read together, Daubert, Joiner and Kumho Tire make it clear that the trial judge is required to independently evaluate:

  1. the reasonableness of the expert’s reliance on his data, and
  2. the data underlying an expert’s opinion.

At  PsychLaw.net, we teach that these are now preconditions to the admissibility of the evidence under Rule 702.[1] Although Daubert was a Rule 702 decision focusing on an expert’s methodology, the reasoning in Daubert is also relevant to Rule 703 issues relating to the data underlying an expert’s opinion because the two rules are interrelated. [2] Thus, appellate courts require district courts to act as “gatekeepers”, ensuring that the scientific data supporting the expert’s opinion are reasonable, valid and reliable.[3]

At  PsychLaw.net we take note that as commentators Faigman, Kaye et al emphasize, the more difficult question that courts must face under Daubert, Joiner, and Kumho is: How dependable must expert evidence be to be good enough for admission?[4]  Professors Faigman, Kaye et al go on to explain:

“In a nutshell, Daubert and its progeny–perhaps especially its progeny–brought the scientific culture to the courtroom. Judges are now expected to bring some critical judgment, informed by knowledge of the way empirical propositions are tested, to expert evidence admissibility decisions.”[5]

 Indeed, Joiner instructs that conclusions and methodology are not completely distinct from one another.  Trained experts often extrapolate from existing data, but the Court instructed that neither Daubert nor the Federal Rules of Evidence require a district court to admit opinion evidence which is connected to existing data only by the word or subjective experience of the expert.  As the Joiner court went on to explain, a court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.[6] As a result of these many explicit as well as implicit requirements, Daubert hearing are now de rigueur.

Key Kumho Tire Concepts:

  1. TRIAL COURT  Must have considerable leeway in deciding whether the proposed testimony and the proposed expert is reliable. 119 S.Ct. 1167 at 1176
  2. TRIAL COURT  Must determine both the validity of the expert’s qualifications and the reliability of the proposed testimony 119 S.Ct. 1167 at 1176 – 1177
  3. EXPERTS Must demonstrate a valid connection to the pertinent facts as a precondition to admissibility 119 S.Ct. 1167 at 1174
  4. EXPERTS Whether basing testimony on professional studies or personal experience, must employ in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. 119 S.Ct. 1167 at 1176

[1]  Daubert rejects the general acceptance test for evaluating reliability of scientific evidence and requires a 702 & 703 analysis Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S. Ct. 2786, 2799, 125 L. Ed. 2d 469, 485 (1993).

[2] Daubert reliability standards apply to data issues arising under Rule 703. See: In re Paoli R.R. Yard PCB Litig. 35 F.3d 717, 748-749 (3d Cir. 1994)       cert. denied 513 U.S. 1090 (1995) (applying same standard avoids need of making metaphysical distinctions between problems with underlying data itself as opposed to problems with the methods used to analyze the data).

[3]  For early examples of the Judge as gatekeeper in evaluating an expert and the expert’s data, See: In re Paoli R.R. Yard PCB Litig, 35 F.3d 717, 742 (3rd Cir. 1994), cert. denied. 513 U.S. 1090 (1995) (gatekeeping role with regard to experts includes independent evaluation of reasonableness of the data relied on by experts under Fed. R. Evid. 703).  See, also:

2nd Circuit   United States v. Locascio, 6 F.3d 924. 938 (2nd Cir.          1993), cert. denied., 511 U.S. 1070 (1994) (Daubert principles interpreting FRE 702 apply equally to FRE 703).

3rd  Circuit   In re Paoli R.R. Yard PCB Litig., 35 F.3d 717. 742 (3rd Cir.       1994), cert. denied. 513 U.S. 1690 (1995) (gatekeeping role with regard to experts includes independent evaluation of reasonableness of data relied          on by experts FRE 703).

5th Circuit   See: Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194, 197 n.4 (5th Cir. 1996) (Courts using Daubert     standard for admissibility of expert testimony should pay close attention when expert witnesses depart from generally accepted scientific methodologies, because judge or jury may not be junior scientists, equipped to evaluate scientific innovation; Guillory v. Domtar Industries, Inc., 95 F.3d 1320, 1331 (5th Cir. 1996) (it is the role of the district Judge as gatekeeper for expert evidence to exclude evidence tainted by farce or fiction).

7th Circuit    See: Porter v. Whitehall Laboratories. Inc., 9 F.3d 607, 614 (7th Cir. 1993)          (court properly excluded testimony not grounded in scientific method­ Daubert analysis).

8th Circuit    See: Sorensen by and through Dunbar v. Shaklee Corp.,31 F.3d 638, 650­-651 (8th Cir. 1994) (After a Daubert analysis the court properly excluded testimony because scientific basis of proposed testimony was too speculative).

11th Circuit  See: Raynor v. Merrell Pharmaceuticals, Inc., 104 F3d 1371, 1374 (D.C. Cir. 1997) (“Daubert creates no obvious bar to applying Rule 703 as we have done in the past”; finding that trial court properly excluded  proffered  testimony under Rule 702); Ambrosini v. Labarraque. 101 F.3d 129,133-134,     137-139 (D.C. Cir. 1996), cert. dismissed, – U.S. -, 117 S. Ct. 1572 (1997) (as gatekeeper concerning scientific evidence using Daubert standard, district court must engage in preliminary assessment as to whether reasoning or methodology underlying testimony is scientifically valid and whether reasoning or methodology properly can be applied to facts at issue); Ealy v. Richardson-Merrell, Inc., 897 F.2d 1159, 1161­- 1162 (D.C. Cir.), cert. denied, 498 U.S. 950 (1990) (pre-Daubert case in which court excluded testimony as without scientific foundation in face of wealth of published contrary data).

[4]  Faigman, D.L.; Kaye, D.H.; Saks, M.J. & Sanders, J. (2000) How Good Is Good Enough?: Expert Evidence under Daubert and Kumho. 50 Case Western Reserve Law Review 645. See pg 652.

[5]  Id. at pg 656.

[6]Joiner, 522 US at146, 118 S Ct at 519.  The “ipse dixit” language of Joiner has proved popular with lower courts.  See, e.g., Freeport-McMoran Resources Partners v B-B Paint Corp, 56 F Supp2d 823 (ED Mich 1999)      The court found that the expert’s opinions are nothing more than his own “experience” and tied to each defendant through nothing more than his “ipse dixit.”

 

Evidentiary Reliability and Validity

Posted on by Shawn Wygant

          Quoting from Judge Learned Hand in: Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L.Rev. 40, 54 (1901), the Supreme Court explained in Kumho that experts of all kinds tie observations to conclusions through the use of “general truths derived from … specialized experience.”.[1]    To meet the validity and reliability challenge, the Court instructed that the gatekeeper:

  1. Must have considerable leeway in deciding whether the proposed testimony and the proposed expert is reliable;[2]
  2. Must determine the validity of the expert’s opinion, qualifications and the reliability of the proposed testimony[3] – and –
  3. The proffered expert’s opinion, must demonstrate a valid connection to the pertinent facts as a precondition to admissibility.[4]

It is our position at PsychLaw.net that the well prepared cross examiner will never overlook considerations of reliability and validity when dealing with mental health professionals.[5]  Issues of reliability may be compromised when mental health professionals are allowed to rely on the opinions of others when giving expert testimony.[6]  In some cases the sources upon which an expert relies for their opinions are of such little value that the testimony will not assist the jury in arriving at an intelligent and sound verdict.  In such cases, the rule requires the gatekeeper to examine the reliability of an expert’s sources to determine whether they satisfy the threshold established by the rule.[7]

Simply stated, validity involves correct application. We at PsychLaw.net define six kinds of validity in our glossary and explain that validity is the process by which we attempt to accurately communicate.  Following Daubert many courts have laid down bright validity lines for admissibility:

  1. Expert testimony is to be based upon scientific knowledge that will assist the trier of fact, not upon generally acceptable theory. Hopkins v Dow Corning Corp., 33 F. 3d 1116 (9th Cir. 1994);
  2. Expert testimony lacks sufficient scientific validity to be admissible absent scientific studies on expert’s theories, scientific peer review or general acceptance of theories or methodology. Sorensen v Shaklee Corp., 31 F.3d 638 (8th Cir. 1994);
  3. Expert testimony must be based upon scientifically valid reasoning.  Expert’s belief on probable cause is not admissible in the absence of adequate explanation of how the witness’s expertise enables the expert to testify on the likely cause of injury. Watkins v Schriver, 52 F.3d 769 (8th Cir. 1995);
  4. The court may consider whether the expert’s theory has been tested, subject to peer review, published, generally accepted and has a known rate of errors. Peitzmeier v Hennessy Industries, 97 F.3d 293 (8th Cir. 1996);
  5. At a minimum, a recognized group of scientists in the field must accept the expert’s methodology as scientifically reliable.Lust v Merrell Dow, 89 F.3d 594 (9th Cir. 1996); and
  6. The court must determine that expert’s opinion has scientifically valid methodology which can be applied to the factual dispute. Allen v Pennsylvania Engine Corp. 192 F.3d 194 (5th Cir. 1996)

Shielding the Jury from Prejudicial “Junk Science”

We at PsychLaw.net emphasize that like most other evidence, expert testimony is subject to Rule 403 balancing. The Supreme Court stated that because expert testimony can be both powerful and misleading, trial judges exercise more Rule 403 control over expert testimony than lay witness testimony.[8]   Following the Rules 401, 702 and 703 challenges described previously, the well prepared cross examiner can use the Daubert hearing and voir dire to attack proffered expert testimony on prejudicial grounds.  In this way, the cross examiner asks the gatekeeper to employ a Rule 403 analysis that balances the probative value of an expert’s opinion, against the dangers of prejudice, confusion, and waste of time.  This should also be done when evaluating the reasonableness of the data underlying an expert’s opinion [FRE703].   As a corollary, the argument must be made that the probative value of an expert’s opinion must outweigh its prejudicial effect under Rule 403 for the opinion to be admissible under Rule 703.[9]

Scientific testimony often carries an “aura of infallibility.”  Summarizing the literature, one respected commentator writes that:

“[t]here is virtual unanimity among courts and commentators that evidence perceived by jurors to be ‘scientific’ in nature will have particularly, persuasive effect.”[10]

The cross examiner must call upon the gatekeeper to use a Rule 403 analysis of the proposed testimony as it may tend to confuse and often uses prejudicial language.[11]  Also, mental health professionals may speak to statistical analysis of their data and the cross examiner must be on guard against unfair prejudice in the language that is used in these situations.[12]

We at PsychLaw.net emphasize the necessity of shielding jurors from “junk science” by using the Rules and decisional law to aid the gatekeeper in making these important evidentiary rulings.  Consider a well-known study published in 1973 that found no connection between asbestos and mesothelioma.  Mesothelioma is the cruel form of lung cancer that we now know is linked uniquely to asbestos.  The study found no connection because, in a review of mortality among retirees from 26 asbestos plants, only one retired worker had died of mesothelioma. The problem was that most of the workers who contracted mesothelioma, and many did, died before reaching retirement age.  Consequently, the study included data obtained only from healthy workers. Despite this glaring flaw, this peer-reviewed, published study was not retracted until six years later.[13]

It is true that effective cross-examination may prevent misleading a jury. Nonetheless, we at PsychLaw.net recommend getting the job done before a jury is ever seated.[14]

 The Problem of Creeping Hearsay.

          As Federal Rule of Evidence 703 does not require the facts or data the expert relies upon to be admitted into evidence,[15] the cross examiner must work diligently to accomplish a Rule 703 “reasonable reliance,” and Rule 403 “more prejudicial than probative,” showing before trial.  Certainly, mental health professional rely on much that may not be admissible.  The problem for the cross examiner is that these same professionals, when called to testify, believe that this portion of the evidence rule creates a via regia for hearsay.[16]

While the Rule does not require personal knowledge and allows experts to form opinions on the basis of data that may otherwise be inadmissible, the cross examiner must guard against the use of 703 as akin to a hearsay exception.  We at PsychLaw.net teach that the  best way to manage this difficult task is with a demand for full disclosure.  Next, careful scrutiny of the data relied upon for reliability, validity and trustworthiness, must be accomplished.[17]  In this way, prejudicial hearsay, which may otherwise creep into the record, may be bared at the door.

_________________________________________________________________________________________________________________

[1].       Kumho Tire Company, Ltd. v Carmichael, ___ U. S. ___, 119 S.Ct. 1167,at 1174; 143 L.Ed.2d 238 (1999).

[2].       Id. at 119 S.Ct. 1167 at 1176.

[3].       Id. at 119 S.Ct. 1167 at 1176 – 1177.

[4].       Id. at 119 S.Ct. 1167 at 1174.

[5].       For example, see: Baumholser v Amax Coal Co., 630 F.2d 550, 553 (7th Cir. 1980) Where the reviewing court found no prejudicial error when trial judge improperly admitted geology survey relied on by expert because the trial judge allowed extensive cross-examination on reliability and the opponents produced their own experts to testify on issue. See, also: TK-7 Corp. v.  Estate of Barbouti, 993. F. 2d 722, 732-   733 (10th Cir. 1993) Where an expert was not allowed to rely on opinions of other experts because his unfamiliarity with methods and reasons underlying other expert’s conclusions precluded effective cross-examination concerning reliability.

[6].       Kibert v Peyton, 383 F.2d 566 (4th Cir. 1967) An expert witness is permitted to take into account the testimony of others as to what they observed; United States v. 1,014.16 Acres of Land, 558 F. Supp.   1238, 1242 (W.D. Mo. 1983), aff”d, 739 F.2d 1371 (8th Cir.1984) An expert is allowed to rely on, among other things, opinions of other experts.

[7].       See, i.e.: Slaughter v Southern Talc Co., 919 F.2d 304 (5th Cir. 1990).

[8].       See, i.e.: Daubert v Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579; 113 S.Ct. 2786, 2798 (1993) quoting J. Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991).

[9].       For examples of expert testimony being subject to Rule 403 analysis. See, i.e.: Emigh v. Consolidated Rail Corp., 710 F. Supp. 608, 612 (W.D. Pa. 1989)  Where the court held that Fed. R. Evid. 703 may not be used as “backdoor” to get evidence before jury. For more examples of unfair prejudice, see. i.e.:

1st Circuit – See, e.g., Lynch v. Merrell-Nat’l Labs. Div. of Richardson-Merrell. Inc., 646 F. Supp. 856, 866-867 (D. Mass. 1986). aff’d, 830 F.2d 1190 (1st Cir. 1987) The court ruled that studies of analogous chemical structures relied on by plaintiffs’ experts could not be used to show causation. because of their highly speculative nature; citing Fed. R. Evid. 401-403. 703.

2d Circuit – See, e.g., Shatkin v. McDonnel-Douglas Corp., 727 F.2d 202. 208 (2nd Cir. 1984) The trial court excluded opinion based on assumptions so unrealistic and contradictory as to suggest bad faith; citing Fed. R. Evid. 403, 703; Mathie v. Fries, 935 F. Supp. 1284, 1295 1296 (E.D.N.Y. 1996). aff’d and modified on other grounds, 121 F.3d 808 (2nd  Cir. 1997) Where evidence of rape-trauma syndrome, although generally accepted in relevant scientific community, was seen to be inadmissible when offered merely to prove that sexual assault took place or to bolster witness’s credibility. because potential value of evidence was outweighed by undue prejudice to defendant.

7th Circuit –  See, e.g., Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1270-1271 (7th Cir. 1988) Where the court used Fed. R. Evid. 403 analysis to exclude expert opinion under Fed. R. Evid. 703.

[10].     McCormick, et al., (1995) Evidence § 203, at 876. See, also:  Strong, J. W. (1992). Language and Logic in Expert Testimony Limiting Expert Testimony by Restrictions of Function, Reliability, and Form, 71 OR. L. Rev. 349, 361; and see: Vidmar, N.J.  & Schuller, R.A. (1989).  Juries and Expert Evidence: Social Framework Testimony, LAW & CONTEMP. PROBS., Autumn 1989, at 133, 166 (footnote omitted); also see e.g., Commonwealth v. Garcia, 588 A.2d 951, 955 (Pa. Super. Ct. 1991), appeal denied, 604 A.2d 248 (Pa. 1992) Instructing that “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.’”.

[11].     Courts rely on Rule 403 to exclude opinions which are couched in terms that may be clearly prejudicial even though the gist of the opinion is admissible. A judge might, for instance, find the terms “voiceprint” or “DNA print” objectionable as suggesting an analogy to fingerprints that might cause a juror to overvalue the worth of the expert’s opinion.  In cases involving allegations of child sexual abuse, experts are fond of describing a child’s story as a “disclosure” so as to lend credibility to the expert’s sense that abuse really happened.

[12].     Courts have relied on Rule 403 when they fear that statements of statistical probability might be over persuasive and thus prejudice the jury. In United States v. Massey, 594 F.2d 676, 680 (8th Cir. 1979) for example, the court reversed on the basis of plain error. The prosecution’s expert witness who identified a hair sample as identical to one taken from the defendant testified to some statistical probabilities as to which no foundation had been established.

[13].     See Sharon Begley, The Meaning of Junk Science, NEWSWEEK, Mar. 22, 1993, at 64. See, also: Faigman,D. L. (1989).  To Have and Have Not: Assessing theValue of Social Science to the Law as Science and Policy, 38 Emory L.J. 1005.

[14].     One of the real problems with waiting until trial is illustrated in these holdings:

United States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir. 1993) The reviewing court ruled that the exclusion of testimony due to the danger of misleading the jury was not a ground for reversal because the opposing party had an opportunity to refute testimony during cross-examination; and see: Singer Co. v. E.I. du Pont de Nemours & Co., 579 F.2d 433, 443 (8th Cir. 1978) Where the trial court refused to strike expert testimony as unsupported speculation on the ground that it was for the jury to value the worth of the opinion with the assistance of vigorous cross-examination.

[15].     Underlying facts or data need not be admissible. See, i.e.:

3d Circuit – See, e.g., United States v. Theodoropoulos, 866 F.2d 587, 590 (3rd  Cir. 1989) Expert testimony decoding intercepted telephone conversations, some in foreign language, was admissible even though some of expert’s conclusions drawn from material not in evidence.

5th Circuit –  See, e.g., Marcel v. Placid Oil Co., 11 F.3d 563, 567-568 (5th Cir. 1994) Experts may rely on hearsay if data is reliable and otherwise qualifies under Fed. R. Evid. 703.

7th Circuit – See, e.g., Finchum v. Ford Motor Co., 57 F.3d 526, 531-532 (7th  Cir. 1995) A Plaintiff’s expert was entitled to rely on published article about occupant safety during rear impact collision although article itself was inadmissible hearsay; and  Baumholser v. Amax Coal Co., 630 F.2d 550, 553 (7th  Cir. 1980) Where an expert was entitled to rely on hearsay evidence to support his opinion.  But the evidence itself should not have been admitted; see also United States v. Madoch, 935 F. Supp. 965, 972-974 (N.D. 111. 1996) Where a psychiatrist evaluating the defendant on court order was entitled to rely on defendant’s self-report of physical and emotional abuse in reaching her diagnosis although the statements were hearsay.  The court went on to rule that the  statements the psychiatrist “reasonably relied upon in reaching [ her] opinion may be disclosed to the jury to help the jury understand and evaluate” its basis because Seventh Circuit admits all statements made for purpose of medical diagnosis.  To either treating or nontreating physicians, to same extent whether applying Fed. R. Evid. 703 or Fed. R. Evid. 803(4).

8th Circuit – See. e.g., South Cent. Petroleum, Inc. v. Long Bros. Oil Co.,        974 F.2d 1015, 1018-1019 (8th Cir. 1992) The district court properly allowed an expert to rely on information obtained from a commercial production service that received its information from the state, which in turn received its information from a well operator, even though the underlying data was inadmissible.

9th Circuit – See, e.g., Doe v. Cutter Biological, Inc., 971 F.2d 375, 385-386 (9th Cir.1992) The district court abused its discretion in excluding affidavits of plaintiffs’ three experts on ground that their opinions were not based on “any facts within affiant’s personal knowledge.”

10th Circuit – See, e.g., United States v. Davis, 40 F.3d 1069. 1075 (10th  Cir. 1994).cert. denied, 514 U.S. 1088 (1995) It was proper for an expert to rely on technicians and their notes.

11th Circuit – See, e.g., First Nat’l Bank of Luisvilie v. Lustig,. 96 F.3d 1554, 1576 (11th Cir. 1996) Experts may rely on hearsay evidence in forming their opinions; United States v. Chandler, 950 F. Supp. 1545, 1565-1566 (N.D. Ala. 1996) An expert in drug trade was entitled to form and testify to opinions based on inadmissible facts, including hearsay.

[16].     Here are some recent examples of hearsay as the basis for testimony:

2d Circuit – See. e.g., New York State Ass’n for Retarded Children v. Carey, 706 F.2d 956. 961 (2nd Cir.). cert. denied, 454 U.S. 1150 (1983) An expert’s opinion based on out-of-court statements obtained for purpose of enabling expert to express opinion was admissible.

3d Circuit – See, e.g., United States v. Scarfo, 711 F. Supp. 1315, 1344-1345 (E.D. Pa. 1989). aff’d, 910 F.2d 1084 (3rd Cir. 1990) The trial court allowed the prosecution expert in racketeering trial, to express an opinion on cause and time of murder victim’s death.,where the expert relied on findings of medical examiner.

5th Circuit – See, e.g., Marcel v. Placid Oil Co., 11 F.3d 563, 567-568 (5th Cir. 1994) Experts generally may rely on hearsay, such as study, if data is reliable and qualifies under Fed. R. Evid. 703.

7th Circuit – See. e.g., United States v. Brown, 7 F.3d 648, 653 (7th Cir. 1993) A witness properly based his opinion on types of evidence relied on by experts in narcotics, specifically, his examination of physical evidence and police reports.

8th Circuit – See. e.g., South Cent. Petroleum, Inc. v. LongBros. Oil Co., 974 F.2d 1015, 1018-1019 (8th Cir. 1992) An expert was permitted to rely on information obtained from commercial production service.

9th Circuit – See, e.g., Doe v. Cutter Biological, Inc., 971 F.2d 375, 385-386 (9th Cir. 1992) The trial court erred in excluding affidavits of plaintiffs’ three experts based on their knowledge of the medical literature.

10th Circuit – See. e.g., United States v. Davis, 40 F.3d 1069. 1075 (10th  Cir. 1994) It was proper for expert to rely on technicians and their notes.

[17].     See, i.e.: In re Japanese Elec. Prod. Antitrust Litig., 723 F.2d 238, 285 (3rd  Cir. 1983), rev’d on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) Full disclosure of the hearsay source underlying an expert opinion creates a foundation for an analysis of its trustworthiness and reliability.

The Importance of Voir Dire

Posted on by Shawn Wygant

As the Supreme Court instructed in Daubert: “the expert’s opinion must have a reliable basis in the knowledge and experience of his discipline.”  113 S Ct at 2796; 125 L Ed 2d at 482.  Compared to lay witnesses, experts purport to offer testimony that is scientific; and the Court offered that the term “scientific” implies a “grounding in the methods and procedures of science.” Id. 113 S Ct at 2795; 125 L Ed 2d at 481.  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; 125 L Ed 2d at 481.

          The Court’s instruction to the trial courts was that when “expert,” or  “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; 125 L Ed 2d at 482 emphasis added

           At PsychLaw.net we remind that Rule 104(a) of the Federal Rules of Evidence provides that opposing counsel may voir dire a witness before the witness is permitted to testify as to his or her opinion.  Questions relating to qualifications may also be pertinent to a motion to exclude evidence on the basis of Federal Rule of Evidence 702.  Such motions would contend that the expert will not assist the trier of fact [FRE 702] and that the expert does not know the datum of his or her discipline [FRE 703]. At PsychLaw.net we feel that in order to aid to the gatekeeper, a good vior dire examines an  expert’s  qualifications, his/her knowledge of the datum of their discipline, and attempts to answer the questions posed in the previous posts.  As the First Circuit informed: “…Voir dire is an extremely helpful device in evaluating proffered expert testimony….”[1], [2]

Concerning the gatekeeper’s ongoing responsibilities, the First Circuit also held that Daubert was intended to liberalize the trial court’s discretion concerning scientific expert testimony.  As a result, it laid down a clear expectation that the trial judges will make continuing sub silentio rulings on the validity of proffered scientific evidence.[3]  Speaking to the utility of voir dire and Daubert hearings, the Third Circuit has offered:

“[A]fter Daubert, we no longer think that the distinction between a methodology and its application is viable. [I]t is extremely elusive to attempt to ascertain which of an expert’s steps constitute parts of a ‘basic’ methodology and which constitute changes from that methodology.”[4]

          With these issues in mind, we at PsychLaw.net have appended a motion to conduct an extended voir dire together with a memorandum of law in support.  This motion and memorandum directs the gatekeeper’s attention to the critical issues of evidentiary reliability, validity and “fit.”  This is particularly important with mental health professionals because of the profound ethical issues involved. For example, the would-be cross examiner will want to use an extended voir dire, to inquire about:

    1. Education
    2. Training
    3. Professional experience
    4. Knowledge of the datum of the expert’s discipline
    5. Research activities and Publications – and –
    6. Professional Ethical Issues:

Credentials.

Through discovery the attorney conducting voir dire will work to describe the expert’s curriculum vitae and personal resume as thoroughly lacking in “fit” for the issues at hand.  Occasionally, outright fraud may come to light. Falsehoods in the expert’s curriculum vitae and personal resume, will lead the gatekeeper to a conclusion there are falsehoods in the report as well.

                   Conflicts of Interest.

Conflicts of interest can provide a legal basis for challenge and court ordered disqualification of an expert witness. In Chapter Two of Cross Examining Experts in the Behavioral Sciences, we describe the conflict between treating therapist and expert witness.  Also, a conflict of interest presents a viable area of examination which may go to weight later on by impugning the expert’s integrity.

 

Employment Beyond Competency.

An expert unfamiliar with the datum of his or her discipline or just out of their depth, will be exposed by careful voir dire.  The goal is to show that the employment by the other side, simply beyond the witness’ experience and capability.

                   Improper Attorney Influence.

Pre hearing discovery is the best way to expose efforts by sponsoring counsel to influence the professional expert opinions. Normally such correspondence is not privileged in any way unless it is pure attorney work-product and was not relied on by the expert in forming a professional opinion. In the event the witness has relied in whole or in part on any of the data exchanged in communication with counsel, this information is proper for production and examination during voir dire.

                   Contingent Fee.

Occasionally, an expert will take a “bonus” at the completion of trial when a particular side is successful.  This is sometimes found in civil rights litigation, where attorney fees are part of the recovery and padded bills are then affixed.  Obviously if an expert’s compensation is driven by a contingency outcome, the objective orientation of the “scientist” is lost.

                   Creating Conclusions Before Research.

A meticulous file analysis may occasionally demonstrate that an expert opinion or conclusion was reached before any research was done.  This is often found where the expert proposes to testify from “clinical experience”.  As we illustrate in Chapter Three of Cross Examining Experts in the Behavioral Sciences, clinical experience often amounts to nothing more than speculation.  When an expert’s testimony relies on little “more than subjective belief or unsupported speculation”, 113 S Ct at 2795; 125 L Ed 2d at 481 and voir dire exposes this inadequate foundation, the witness should be stricken.

                   Investigation not done.

Often, a close examination of a mental health professional’s time records, notes, raw test data, and/or file reports, reveals that a purported investigation was simply not accomplished. This is frequently found as an artifact of the anchoring biases we discuss in Chapter Three of Cross Examining Experts in the Behavioral Sciences.

                   Intentionally Ignoring Data.

Voir dire of experts frequently exposes their anchoring biases, and their overlooking the rule in / rule out problems, discussed in Chapter Three of Cross Examining Experts in the Behavioral Sciences.  In particular, experts too often ignore relevant data. This may also occur when counsel or clients do not reveal all requisite data, or by the expert turning a professional blind-eye to relevant alternative hypotheses.  This can be seen as an outcome of the PIASH effect.[5]

                   Use of False Data.

Falsified information in notes, testing, records, reports, or other basic data must be discovered and utilized in voir dire. We recommend meticulous preparation by counsel prior to voir dire, with special attention paid to the claims made by mental health professionals as discussed in Chapter Three of Cross Examining Experts in the Behavioral Sciences. This preparation will occasionally uncover a proffered expert so wedded to antiquated and anecdotal data as to render their opinions entirely unreliable.

___________________________________________________________________________________________________________________________

[1].       Cortes-Irizzary v Corporacion Insular, 111 F.3d 184, 188 (1st Cir. 1997).

[2].       See, also: Faigman, D. L; Porter, E. & Saks, M. J. (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 L. Rev. 1799:

The Court has served notice that experts should trade in their crystal balls for electron microscopes. But the success of this move into the twentieth century largely depends on the law’s proper understanding of the crossroads at which law and science meet. “Becoming scientifically literate should prove to be continuing challenge to the law.” Id. at 1801 “It is . . . vitally important that a rigorous and thorough analysis of scientific data be undertaken before those data are admitted into evidence. This task is made difficult because of the general lack of scientific literacy among Americans, including lawyers and judges.”

There also is empirical data that suggests litigants express greater satisfaction in proceedings that allow their attorneys and not the presiding tribunal, to have direct control over the presentation of relevant evidence. See, e.g., Thibaut, J. & Walker, L. (1978).  A Theory of Procedure, 66 Calif. L. Rev. 541. See also Lind, A. E. & Tyler,T. R. (1988). The Social Psychology of Procedural Justice; Thibaut, J. & Walker, L. (1975). Procedural Justice: A. Psychological Analysis.

[3].       See, i.e.: Hoult v Hoult, 57 F.3d 1 (1st Cir. 1995).

[4].       See, i.e.: In re Paoli Railroad Yard Litigation, 35 F.3d 717, 745-750 (3rd Cir. 1994). The Court went on to opine that under Rule 703, the trial judge must make an independent evaluation of the reasonableness of the reliance by experts in the particular field on the particular type of data proffered.

[5]  See, e.g., Campbell, T.W.. (2002).  The piash effect: Psychotherapy-influenced allegations of sexual harassment. American Journal of Forensic Psychology. 20. 53-68 The post-event information effect influences the recall of ambiguous events open to interpretation. Applying data related to confirmatory bias, mood-congruent memory, source monitoring errors, attribution theory, and stereotyping demonstrates how psychotherapy can taint the memories of plaintiffs in harassment matters. Plaintiffs can be expected to express therapeutically constructed memories with genuine sincerity. As a result, cross-examination attempting to impeach plaintiffs as fabricating is ill-advised in these circumstances.

DAUBERT  HEARINGS

Posted on by Shawn Wygant

Federal Rule of Evidence 104(a) provides that preliminary questions concerning the qualification of a person to be a witness, or the admissibility of evidence, shall be determined by the court. Under this rule, the court is authorized to hold an evidentiary hearing to make a preliminary determination that an expert is properly qualified, and that the expert’s underlying reasoning or methodology is scientifically valid and can be applied to the facts of the case.[1]

Federal Rule of Evidence 104 (c) provides in part that hearings on preliminary matters, such as Daubert hearings, may be conducted when the interests of justice require.

In the exercise of its gatekeeping function, the Daubert Court held that a trial court must undertake a preliminary determination of whether the methodology of the expert’s proposed testimony is scientifically reliable. To accomplish this with the greatest judicial economy, and to avoid “junk science” creeping into the minds of the trier of fact, a Daubert hearing is the appropriate way to challenge an expert whose methodology is questionable.[2]

At PsychLaw.net we believe it is especially important for the gatekeeper to distinguish between a number of meaningful issues:

Is this particular expert qualified?

Do the qualifications of this expert fit the facts of this case?

What is the scientific validity of the methodology the expert has used?

What is the scientific reliability of the methodology the expert has used?

What is the scientific validity of the underlying data the expert bases his or her opinions on?

What is the scientific reliability of the underlying data the expert bases his or her opinions on?

To what extent is the expert’s  reliance on that data reasonable. These are analytically distinct concepts.[3]

At PsychLaw.net we remind you that in answering these gatekeeping questions, the courts must evaluate the experts, their opinions, and the foundations for those opinions on a case-by-case basis.[4] In conducting these hearings, the trial judge may rely on another expert’s evaluation of underlying data.[5] Nonetheless, reliance on other experts must not eviscerate the judge’s gatekeeping role.[6], [7]

For these reasons, at PsychLaw.net, we have shared Dr. Lorandos’ Evidence and Cross Examination videos which explain in detail how to use the basic foundational material to conduct a Daubert hearing.

[1]. See, i.e.: Smelser v Norfolk Southern Ry. Co., 105 F.3d 299, 302-303, 46 Fed. R. Evid. Serv. (LCP) 468, 1997 FED App 33P (6th  Cir. 1997);cert denied, 118 S.Ct. 67, 139 L. Ed.2d 29 (US 1997). When applying Daubert, the trial court resolves preliminary questions on admissibility of expert testimony under FRE 104(a), and must determine whether expert testimony reflects scientific knowledge, whether findings are based on scientific knowledge and derived by the scientific method.  In Smelser, the trial court did not apply Daubert factors in admitting the testimony of a biomedical engineer and the verdict for a plaintiff in FELA suit was reversed. See, also: Watkins v Schriver, 52 F.3d 769 (8th Cir 1995); Eagleston v Guido, 41 F.3d 865 (2nd Cir. 1994), cert denied, 116 S.Ct 53 (1996).

[2]. See, i.e.: United States v. Vitek, 144 F.3d 476 (7th Cir. 1998).  The trial court held a lengthy and exhaustive Daubert hearing.

[3]. Curiously, one Circuit has rules that a trial judge may still fulfill his or her gatekeeper function without making an explicit finding that an expert’s underlying sources of information are trustworthy. See, i.e.: United States v. Locascio, 6 F.3d  938 (2d Cir. 1993). cert. denied., —U.S. —; 128 L Ed. 2d 365 (1994) The Second Circuit ruled that a finding or trustworthiness of sources was not required. This Circuit reasoned that although Daubert principle interpreting Fed. R. Evid. 702 applies equally to Fed. R. Evid. 703, trial courts retain authority and discretion to determine admissibility of expert testimony based on inadmissible evidence without having to conduct an explicit trustworthiness analysis.

[4]. See, i.e.: Soden v. Freightliner Corp., 714 F-2d 498, 502- 505 (5th Cir. 1983) Fed. R. Evid. 703 requires courts to examine reliability of expert’s sources on a case-by-case basis.

[5]. See, i.e.: In re Japanese Elec., Prod. Antitrust Litig., 723 F.2d 238, 285 (3d Cir. 1983), rev’d on other grounds sub nom. Matsushita Elec. Indus. Co. v.. Zenith Radio Corp., 473 U.S. 574 (1986).  Proper inquiry is not what the court deems reliable but what experts in relevant discipline deem it to be.

[6]. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.  2786, 2793-2799, 125 L. Ed. 2d 469, 485 (1993); In re Paoli R.R. Yard PCB Litigation v. Southeastern Pa. Trans., 35 F.3d 717, 742 (3d Cir. 1994) Daubert clearly holds that Fed. R. Evid: 703 requires an independant gatekeeping role.

 [7]. See, i.e.: Head v. Lithonia Corp. Inc., 981 F.2d 941. 944 (10th Cir. 1989) It is reversible error when a trial court fails to make a preliminary determination that data underlying an expert’s opinion is of kind reasonably relied on by experts in field.  And see:

1st Circuit: See University of Rhode Island v. A.W. Chesterton Co., 2 F.3d 1200,1217-1218 (1st Cir. 1993) Fed. R. Evid. 703 does not afford automatic entitlement to proponents of expert testimony, and court must give careful consideration to any facts on which expert will rely to determine whether reliance is reasonable.

2d Circuit: See In re Agent Orange Prod. Liab. Lit., 611 F. Supp. 1223,1246 (E.D.N.Y. 1985), aff’d, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988) A guarantee of trustworthiness is seen when an expert relied on material of a kind normally employed by experts in field.

3d Circuit: See Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 682 (3d Cir. 1991) Case remanded because of failure of trial court to make inquiry and finding as to what experts in field find reliable when defendant’s expert based opinion of prospective profits on predicted sales rather than an available data of actual performance).

4th Circuit: See Wilder Enters., Inc. v. Allied Artists Pictures Corp., 632 F.2d 1135,1144 (4th Cir. 1980) Expert opinion testimony was properly excluded due when proponent failed to show that data underlying opinion was of type reasonably relied on by experts in field.