Category: Uncategorized

PA: A serious mental condition

Posted on by Shawn Wygant

We at PsychLaw.net know that parental alienation (PA) is a serious mental condition that affects hundreds of thousands of children and families in the United States and comparable numbers in other countries.  Mental health professionals (MHPs), family law attorneys, and everyday citizens observe PA on a regular basis, even if they do not know that the phenomenon has a name, where it comes from, or what to do about it.  PA is not new. PA has been observed for many decades and has been described and discussed in the scientific literature of MHPs, in legal literature and precedents, and in popular literature – although the condition has been called a variety of names other than “parental alienation.”  

PA is a mental condition in which a child – usually one whose parents are engaged in a high-conflict separation or divorce – allies himself or herself strongly with an alienating parent and rejects a relationship with the target parent without legitimate justification.

Several features of the definition should be noted. PA can be conceptualized as a mental condition of the child (e.g., the child has a false belief that the rejected or “target” parent is evil, dangerous, or not worthy of love) or an aberration in the relationship between the child and the rejected, target parent (e.g., absence of communication and camaraderie between child and parent, even though they previously enjoyed a loving, nurturing relationship).  We refer to “separation or divorce” because PA often occurs prior to legal divorce and in families in which the parents were never married in the first place.  PA may occur in high-conflict marriages when the parents are still living in the same household.  It is essential to recognize that the child’s rejection of the target parent is without legitimate justification.  If a parent was abusive or severely neglectful, the child’s rejection of that parent is understandable or legitimate and does not constitute PA. It is best to follow the convention of most writers, who use “estrangement” to refer to warranted rejection of a parent and “alienation” to refer to unwarranted rejection. Finally, we realize that the target parent may not be a typically “perfect” mother or father and that the target parent may have contributed in some way to the child’s dislike of him or her.  However, the essential feature of PA is that the child’s rejection of the target parent is far out of proportion to anything that parent has done to justify the rejection.

In the last eight decades, various authors have described the phenomenon of PA, but have provided different names for it.  For example, Wilhelm Reich (1945) wrote that many divorced parents defend themselves against what he called “narcissistic” injury by fighting for custody of their children. He found that parents who experienced narcissistic injury often defamed each other and did so in front of the children.  Louise Despert (1953) said, “It is a sharp temptation for the parent who remains with the child to break down their love for the one who has gone” (p. 52).  Jack Westman and his colleagues (1970) wrote that a “pattern is found in which one parent and a child team up to provide an effect on the other parent. In these cases one parent appears to deliberately undermine the other through a child.”

Despert, J. L. (1953). Children of Divorce. New York: Doubleday. 

Reich, Wilhelm (1945, 2006). Charakteranalyse [Character Analysis] [German] (8th ed.).  Cologne, Germany: Kiepenheuer & Witsch. 

Westman, J. C., Cline, D. W., Swift, W. J., & Kramer, D. A. (1970). Role of Child Psychiatry in Divorce. Archives of General Psychiatry, 23(5), 416-420. 

The History of PA

Posted on by Shawn Wygant

 The folks here at PsychLaw know how crucial the role of the court is in PA cases. While the behavioral sciences have been concerned with PA for the last seventy years, PA has been identified in legal proceedings for more than two hundred years.  Stephens (2009) documented cases of PA all the way back to the 18th century in England.  There has been much criticism for many years regarding the handling of PA cases in court – with the criticism ranging from the adversarial nature of law itself to the rules and policies of many courts to the behavior of individual judges.  Many mental health and legal writers have expressed concern regarding: absence of active case management, legal disputes that continue for months and years, litigation that unnecessarily escalates conflict, litigation that encourages the children to gravitate to one parent and shun the other parent, and repeated violations of orders go unpunished so parents make a mockery of the court’s authority. 

Several judges in the U.S. and Canada have been outspoken in their suggestions for how to reduce the trauma of PA.  For example, Judge Michele Lowrance (2010) of Chicago stresses the corrosive power of anger in these circumstances and works to redirect it.  Justice Donna Martinson (2010) of British Columbia argued that “several steps are necessary in order to maintain the focus on the best interests of the children and move the case to a resolution in a just, timely and affordable way” including: early identification of the high conflict cases; setting, right at the start, firm rules about the expected conduct of the parents toward the litigation, the children and each other; setting a time frame within which the case must be concluded; and setting a schedule within the time frame for all the steps that must be taken before a solution can be reached including any necessary psychological or other assessments.

In cases involving PA, case management is important.  Bala, Fidler, Goldberg, and Houston (2007) wrote:

It is important for judges to take control of alienation cases, to limit the possibility of manipulating the court process by the parents, and to ensure a firm and quick response to violations of court orders. These are cases for which judicial case management is especially appropriate.  

In cases involving PA, therapeutic jurisprudence may be very effective.  Sauber (2006) pointed out that the court has the power and the influence – even more than the psychologist, psychiatrist, mental health counselor, social worker, or family therapist – to moderate or alleviate PA.  Fidler and Bala (2010) wrote, “In many alienation cases, the education, coaching, and threats or encouragement of a judge can be a prime motivator for change. Many times in these circumstances, we see children adapt to firm court orders.”  

In cases involving PA it is important to set limits, which may require extreme measures.  That may take the form of contempt citations, imposed supervised contact, a reversal of custodial arrangements, and suspension of visitations with the indoctrinating parent.  Sauber (2006) wrote, “It takes ‘guts’ for a judge to order this reversal even if the evidence is compelling, knowing how much the children will ‘hate’ and protest living with the ‘despised’ parent” (p. 15).

In cases involving PA, environmental changes may be very effective in helping children overcome unreasonable negative attitudes.  Several authors describing their qualitative research using case studies have reported on the benefits of changing custody or enforced parenting time in severe alienation cases. For example, Clawar and Rivlin (1991) reported an improvement in children’s relationships with rejected parents in 90 percent of 400 cases where an increase in the child’s contact with the target parent was court ordered.  They wrote:

Children may say, “I hate her. I’ll never speak with her if you make me go see her,” “I’ll run away,” or “I’ll kill myself if he comes to see me.” However, in some cases, children were told to say these things by the programming and brainwashing parent…. It is not uncommon to see these threats disintegrate after court orders change (p. 144).

Today, there is general recognition that a reversal of custody may be warranted in severe cases (Drozd & Olesen, 2009; Johnston & Goldman, 2010; Johnston, Roseby, & Kuehnle, 2009; Warshak, 2010b).  

Bala, N., Fidler, B. J., Goldberg, D., & Houston, C. (2007). Alienated children and parental separation: Legal responses in Canada’s family courts. Queen’s Law Journal, 33, 79-138.

Clawar, S. S., & Rivlin, B. V. (1991). Children held hostage: Dealing with programmed and brainwashed children. Washington, DC: American Bar Association Section of Family Law. 

Drozd, L. M., & Olesen, N. W. (2009). When a child rejects a parent. Paper presented at the 46th Annual Conference of the Association of Family and Conciliation Courts

Fidler, B. J., & Bala, N. (2010). Children resisting post-separation contact with a parent: Concepts, controversies, and conundrums. Family Court Review, 48(1), 10-47. 

Johnston, J. R., & Goldman, J. R. (2010). Outcomes of Family Counseling Interventions with Children Who Resist Visitation: An Addendum to Friedlander and Walters. Family Court Review, 48, 112-115. 

Johnston, J. R., Roseby, V., & Kuehnle, K. (2009). In the Name of the Child: A Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce (2nd ed.). New York, NY: Springer. 

Lowrance, M. (2010). The Good Karma Divorce. New York: Harper Collins. 

Martinson, D. J. (2010). One Case – One Specialized Judge: Why Courts Have an Obligation to Manage Alienation and Other High-Conflict cases. Family Court Review, 48(1), 180-189. 

Sauber, S. R. (2006). PAS as a Family Tragedy: Roles of Family Members, Professionals, and the Justice System. In R. A. Gardner, S. R. Sauber & D. Lorandos (Eds.), The International Handbook of Parental Alienation Syndrome: Conceptual, Clinical and Legal Considerations (pp. 12-32). Springfield, IL: Charles C Thomas Publisher. 

Stephens, R. (2009).  A Historical Perspective on Parental Alienation and Child Custody Disputes: 1760-Present.  Unpublished manuscript. 

Warshak, R. A. (2010b). Family Bridges: Using Insights from Social Science to Reconnect Parents and Alienated          Children. Family Court Review, 48, 48-80. 

Child Custody Evaluation

Posted on by Shawn Wygant
          The major focus of a child custody evaluation is to assist a court in determining the Best Interests of the Child.  One of the challenges facing Family Courts is that the best interests of the child is defined differently across jurisdictions. This has led to a “lack of consensus as to its meaning” (Kelly, 1999, p. 377). According to Zermatten (2010) “no one knows for certain what are the best interests of a child, or a group of children” (p. 485). Kelly (1999) notes that “because the concept of best interests is rarely defined but heavily relied on, experts, attorneys, court personnel, and parents … create their own meanings” (p. 378).
           Kelly (1999) suggests that a child’s best interest should be defined as the “combination of factors a child needs in a custody and/or access arrangement that will sustain his or her adjustment and development” (p. 378). She further opines that “despite the changing family structure, whatever individual parental emotional and intellectual resources existed for the child should be sustained or maximized after separation” (Kelly, 1999, p. 378).
          Other researchers have stressed the importance of neutrality when evaluating parents and their children for issues concerning custody and access (See Handbook of Child Custody). Forensic evaluators are often reminded in the literature and relevant case law of the Constitutional dimensions surrounding family civil rights (Karst, 1980) and a family’s right to “integrity” and “privacy” (Bohl, 1994). Parents and children have a substantive due process right to maintain close and continuing relationships with each other after the dissolution of the family (Alsager v. Polk County, 1975; Santosky v. Kramer, 1982). These rights are held in common between the children and their parents (See Family Relationships).

Stopping the Spread of Misinformation: A Case Study

Posted on by Shawn Wygant

In our last blog, we talked about the importance of using voir dire to examine the reliability and validity of expert witness’ testimony. Here, PsychLaw.net  examines a specific case example, In re R.W.W., Montana, 2017, where Drs. Silberg and Geffner provide testimony that proliferates the spread of misinformation.

In re R.W.W., Montana, 2017:

In re R.W.W.[1] was instituted in 2014 when the court-appointed guardian ad litem (GAL) requested emergency relief from the Court due to Mother’s behavior.[2] The parents in In re R.W.W. divorced in 2011 and a shared parenting plan was entered for the parties’ child born in 2004.[3] Beginning in January 2014, the GAL “became concerned” because Mother was “applying significant pressure on R.W.W. to lie about his dad to law enforcement personnel, Child and Family Services …, and other third parties.”[4] This included taking the child to the:

Police Station and presented a story of [Father] and others plotting during a Thanksgiving celebration to kill [Mother], all in front of R.W.W. [Mother] presented the same story to CFS. Upon investigation, the story turned out to be false. Further, GAL …related that when she saw R.W.W. in January 2014, he was in extreme distress and presented in a fetal position, with his hood pulled over his eyes. When GAL … asked what was wrong, R.W.W. repeatedly said that he could not say and that his mom told him he would go to jail if he did. Eventually, R.W.W. recounted that [Mother] had made him lie about the incident.[5]

The GAL informed the court that this was the “worst case of attempted parental alienation” that the GAL had seen.[6] In response to the GAL’s opinion, Mother requested the GAL be removed, which the court did.  The court also appointed a professional to investigate and make a recommendation.[7] The investigator met with R.W.W. 10 times, and recommended the child spend two weeks with Father and one with Mother on a rotating basis until “some” of Mother’s parenting deficiencies were corrected.[8]  At an emergency hearing in January 2015, the investigator, who had conducted two further interviews with R.W.W., testified that Mother’s behavior had worsened, the child’s “stress level” had worsened, and he wanted to live with his father.[9] 

In response to this testimony, Mother “issued subpoenas” to the investigator’s licensing board, filed a disciplinary complaint against Father’s counsel,[10] and hired Dr. Silberg.  According to the record, allegations of abuse “mysteriously arose right when … Dr. Silberg came on the scene.”[11] Dr. Silberg testified that, in her opinion, this was a “classic case” of domestic abuse by Father against Mother.[12] The record reveals that the court “roundly dismissed the absurd contentions of abuse.”[13]

The court records document that in December 2015, at the hearing for a final parenting plan, the child’s counselor expressed concerns about Child’s suicidal ideas offering:

[W]hen R.W.W. has been at [Mother’s] home and then comes in for therapy, he is always agitated and has a sense of urgency and pressure to relate bad things about his father … insists that [the parenting coordinator] be told these bad things … has suicidal ideations … was concerned that his mother might not be able to live if he was taken away from her and … she does not get out of bed when he is gone.[14]

The child’s therapist testified that contrary to how the child is after being with his mother, “R.W.W. feels safe and relaxed with [Father] and … has a good relationship with his father.”[15] The parenting coordinator agreed, noting that while in Mother’s care, the child “was tired, his posture was defensive, and at times … would assume a fetal position …. In comparison, when … with his father, he appeared rested, laughing, and demonstrated a good sense of humor.”[16]

Apparently in response to this and other evidence that Mother’s parenting should be supervised, Mother hired Dr. Robert Geffner.[17] Father objected because it appeared Mother wanted to relitigate the abuse allegations Dr. Silberg described, which were “roundly dismissed” as “absurd.”[18] Nevertheless, the court allowed Dr. Geffner to testify for Mother “based on only a review of the records”[19] and only as to issues subsequent to the Court’s prior determinations.

When examining Dr. Geffner, Father’s attorney referred to prior cases in which Dr. Geffner had attempted to provide expert testimony, including O’Rourke v. O’Rourke, supra, Clark v. Collin[20]s(in which the court found that Dr. Geffner’s affidavit lacked credibility), and Hawaii v. French[21] (where “the court likewise excluded Dr. Geffner’s testimony”).[22] In this case, Father was worried that Dr. Geffner would attempt, as he had in O’Rourke, to disparage the other psychiatrists or psychologists who were testifying as experts.[23]  Father’s attorney also confronted Dr. Geffner with two affidavits he executed in O’Rourke, in which he accused Mr. O’Rourke of abuse, when he had not spoken to him or any of the other witnesses.[24]

Then it got worse.  In cross-examination, Father’s attorney asked Dr. Geffner: “I believe you told me … that you have testified in over 300 cases and your opinion has never been excluded; is that correct?” Similar to Dr. Silberg’s testimony in D.T. v N.O.[25] Geffner answered that his testimony had not been excluded.ccxiv Father’s attorney then presented the Court with a copy of a Tennessee appellate opinion in which that court noted, “The court likewise excluded Dr. Geffner’s testimony in Hawaii v. French.”[26]

Father’s attorney also confronted Dr. Geffner with the opinion of the O’Rourke trial judge—that Dr. Geffner had “adopted Mother’s scorched earth tactics” and that his testimony was “… completely without merit and that he truly fits the definition of a ‘hired gun.”[27] In response, Dr. Geffner claimed that O’Rourke “was the last case that judge ever heard,” and “he was basically forced to resign.”[28] Dr. Geffner also testified that the expert on the other side of the O’Rourke case was being investigated by the FBI for recommending a change of custody to a  father who Dr. Geffner said was sexually abusing his child.[29]  Dr. Geffner then went on to spontaneously offer that that expert’s opinion was not backed by research and the American Psychiatric Association had “repudiated him.”[30]

Given these remarkable statements, the trial court investigated them and specifically found that, regarding the judge in O’Rourke: he remained on the bench for 8 more years, then started a law firm, then was appointed a Senior Judge, taught at a law school, was an approved mediator, and then served as a Special Judge for the Tennessee Court of Appeals.[31]   The trial judge also looked into the expert and found that he was never investigated by the FBI, and he was a “respected and distinguished professional.”[32] 

The court set out its findings of fact and conclusions of law in a detailed 43-page Order, and after describing Mother’s conduct as “toxic litigation tactics”[33] concluded that the child was “not emotionally safe” when with his mother, ordered that she have no contact for a period of time and then only 4 hours of supervised parenting time every other week.[34] A five judge panel of the Montana Supreme Court affirmed the Order.[35]

____________________________________________________________________________

[1] In re R.W.W., 2017 MT 174N, 400 P.3d 230 (styled by the parties and district court as Wolf v Wolf).

[2] Id. at ¶ 5, 400 P.3d 230.

[3] Id. at ¶ 3, 400 P.3d 230.

[4] Id. at ¶ 4, 400 P.3d 230.

[5] Id. at ¶ 4, 400 P.3d 230.

[6] Brief of Petitioner and Appellant, In re R.W.W., 2017 MT 174N, 2017 WL 1102240, at *5 (Mont. Mar. 13, 2017).[hereinafter Wolf Brief]

[7] In re R.W.W., 2017 MT 174N at ¶ 5, 400 P.3d 230.

[8] Id. at ¶ 6, 400 P.3d 230.

[9] Id. at ¶ 7, 400 P.3d 230

[10] Id. at ¶ 8, 400 P.3d 230.

[11] Transcript at 10, 30, 117, Wolf v. Wolf, No. DR-13-380CX (J Gallatin Co., Mont. June 3, 2016) [hereinafter Wolf Tr.]

[12] Wolf Brief, supra note 194, at 9. A voir dire prepared attorney may seek to inquire whether this behavior by Dr. Silberg may have violated the ethical principles and guidelines prohibiting bias, providing opinions about people who have not been properly assessed or examined and intentional misrepresentations. Ethical Principles & Standards, supra note 47, at 5.01. Specialty Guidelines, supra note 48, at 9.01, 9.03, 11.01.

[13] Wolf Tr., supra note 199, at 10, 30, 117. Findings of Fact and Conclusions of Law, Wolf v. Wolf, No. DR-13-380CX ¶¶ 90-102 (Gallatin Co., Mont. Apr. 24, 2015)[hereinafter Wolf Findings (4/24/15)]

[14] In re R.W.W., 2017 MT 174N at ¶ 10, 400 P.3d 230. See also Wolf Tr., supra note 199, at 143.

[15] In re R.W.W., 2017 MT 174N at ¶ 10, 400 P.3d 230.

[16] Id. at ¶ 11.

[17] Id. at ¶ 13. And see Findings of Fact, Wolf v. Wolf, No. DR-13-380CX ¶ 53 (Gallatin Co., Mont. July 20, 2016) [hereinafter Wolf Findings (7/20/16)]

[18] Id., at ¶¶ 57, 90-102. See also Wolf Tr., supra note 199, at 10, 30, 117.

[19] In re R.W.W., 2017 MT 174N at ¶ 13, 400 P.3d 230.

[20] Clark v. Collins, 956 F.2d 68, 72 (5th Circuit 1992).

[21] Hawaii v. French, 129 P.3d 581 (Hawaii 2006).

[22] O’Rourke v. O’Rourke, 2010 WL 4629035, at *7 (Tenn. Ct. App., April 5, 2013).

[23] Id.

[24] Id. at *6.

[25] Tr. (1/27/14), supra note 49, at 200-01. Tr. (1/28/14), supra note 67 at 239.

[26] Wolf Tr., supra note 199, at *28.

[27] O’Rourke, 2010 WL 4629035, at 7.

[28] Id.

[29] Wolf Tr., supra note 199, at 178.

[30] Id. at 180-181. Investigation indicates that the case Dr. Geffner was referring to is Cone v Cone, which was affirmed by the Court of Appeals of Tennessee. Cone v. Cone, No. M2008-02303-COA-R3-CV, 2010 WL 1730129 (Apr. 29, 2010). The expert being criticized was Professor William Bernet of Vanderbilt University, the co-editor of this text. Dr. Bernet has not been investigated by the FBI.  The father in that case was a doctoral level licensed health care practitioner with no indication when his state licensing board was queried that he had ever been sanctioned or suspended from practice.

[31] Wolf Tr., supra note 199, at 180. NOTE There is no document, report, letter, press release etc. published by the American Psychiatric Association repudiating Professor Bernet. The proposal referred to was Professor Bernet’s book. See William Bernet, Parental Alienation, DSM-5, and ICD-11 (2010).

[32] Wolf Findings (7/20/16), supra note 205, at ¶ 61.

[33] Id. at ¶ 62.

[34] In re R.W.W., 2017 MT 174N at ¶ 15, 400 P.3d 230.

[35] Id. at ¶ 24. See also Ethical Principles & Standards, supra note 47, at D, 5.01. Specialty Guidelines, supra note 48, at 11.01.

STATEMENT OF FACT VOIR DIRE 

Posted on by Shawn Wygant

Earlier, PsychLaw.net  discussed a data-of-the-discipline voir dire which was illustrated by drawing on the Colorado case of D.T. v. N.O.[1]  Here is an example of a voir dire based upon exploration of five statements of fact in In re R.W.W.[2] The attorney preparing the voir dire pursuant to her Sixth Amendment right to confront this witness would note that none of these five statements of fact were prefaced with “I’m just spit ballin’ here” or “I don’t know it for a fact, I just know it’s true.”[3] In preparing the voir dire, she would have on hand:

  • A transcript of Dr. Geffner’s In re R.W.W. testimony with specific pages marked:
  • Oath to tell “… the truth, and nothing but the truth, so help you God.”[4]
  • The five illustrative statements of fact in In re R.W.W.[5]
  • Appellate records for cases where Dr. Geffner’s opinions were excluded[6]
  • American Psychological Association – Policy in Context[7]
  • Ethical Principles of Psychologists and Code of Conduct of the APA, with notes marking sections pertaining to: bias[8]; accuracy, fairness, and avoidance of deception[9]; fraud, subterfuge, or intentional misrepresentation of fact; false, deceptive, or fraudulent statements; offering opinions when one has not done an examination[10]; and attacking other experts’ credentials, credibility, good faith.[11]
  • Specialty Guidelines for Forensic Psychology of the APA, with notes marking sections pertaining to: bias[12]; accuracy, fairness, and avoidance of deception[13]; offering opinions when one has not done an examination[14]attacking other experts’ credentials, credibility, good faith(
  • Black’s Law Dictionary and Webster’s Dictionary with notes marking definitions for words drawn directly from the APA Principles, Standards and Guidelines: Avoid  – Deceptive  –  Deny  –  False  –  Fraud  –  Fraudulent  –  Impartial  –  Inaccurate  –  Misleading  –  Misrepresentation  –  Subterfuge  –  Subvert
  • The Montana Statute on Perjury (Mont. Code Ann. 45-7-201)highlighting: “A person commits the offense of perjury if in any official proceeding the person knowingly makes a false statement under oath ….”[15]

The prepared attorney could proceed with the witness as follows:

1.Mark each as a demonstrative exhibit and establish the validity, evidentiary use of and/or admissibility of:

A. Mont. Code Ann. § 45-7-201 – Perjury

B. Appellate records for:

  • State v. Nicklasson, 967 S.W.2d 596 (1998)
  • Nicklasson Roper, 2005 WL 1005126 (unpublished)
  • State v. French, 110 Hawai’i 78, 129 P.3d 581 (2006)
  • Beam v. Beam, 130 Hawai’i 346, 310 P.3d 1047 (2010)
  • State v. Jacobson, 780 Ariz. Adv. 2017 WL 6523707 (2017)

C. American Psychological Association – Policy in Context[16]

D. Ethical Principles of Psychologists and Code of Conduct (January 2017) of the APA.[17]

E. Specialty Guidelines for Forensic Psychology (January 2013) of the APA.[18]

F. Transcript of Dr. Geffner’s sworn testimony in In re R.W.W.

G. The Parties briefs from In re R.W.W.[19]

H. Findings of Fact and Conclusions of Law by Honorable Brenda Gilbert, Judge of the Sixth District Court of Montana, in In re R.W.W.[20]

I. Black’s Law Dictionary definitions of

Avoid  –  Deceptive  –  Deny  –  False  –  Fraud  –  Fraudulent  –  Impartial  –  Inaccurate  –  Misleading  –  Misrepresentation  –  Subterfuge  –  Subvert

J. Webster’s Dictionary definitions of

Avoid  –  Deceptive  –  Deny  –  False  –  Fraud  –  Fraudulent  –  Impartial  –  Inaccurate  –  Misleading  –  Misrepresentation  –  Subterfuge  –  Subvert

2. For each of the illustrative statements of fact from In re R.W.W., compare and contrast with Mont. Code Ann. § 45-7-201 “… false statement under oath ….”

A. My testimony has never been excluded.

  • State v. Nicklasson, 967 S.W.2d 596 (1998)
  • Nicklasson Roper, 2005 WL 1005126 (unpublished)
  • State v. French, 110 Hawai’i 78, 129 P.3d 581 (2006)
  • Beam v. Beam, 130 Hawai’i 346, 310 P.3d 1047 (2010)
  • State v. Jacobson, 780 Ariz. Adv. 2017 WL 6523707 (2017)

B. That was the last case the O’Rourke judge ever heard.

Findings of Fact and Conclusions of Law, in In re R.W.W.

C. That O’Rourke judge was basically forced to resign.

Findings of Fact and Conclusions of Law, in In re R.W.W.

D. The O’Rourke expert was being investigated by the FBI.

Findings of Fact and Conclusions of Law, in In re R.W.W.

E. The American Psychiatric Association repudiated O’Rourke expert

Findings of Fact and Conclusions of Law, in In re R.W.W.

3. For each of the illustrative statements of fact from In re R.W.W. compare and contrast with the Ethical Principles of Psychologists and Code of Conduct (January 2017) of the APA:

Principle D – Justice

Principle C – Integrity

Standard 5.01 – Avoidance of False or Deceptive Statements

Standard 9.01(b) – Bases of Assessment and Persons Not Examined

4. For each of the illustrative statements of fact from In re R.W.W. compare and contrast with Specialty Guidelines for Forensic Psychology (January 2013) of the APA:

Guideline 1.01 – Integrity

Guideline 1.02 – Impartiality and Fairness

Guideline 2.07 – Considering the Impact of Personal Beliefs and Experience

Guideline 11.01 – Accuracy, Fairness and Avoidance of Deception in Public Statements

Guideline 11.05 – Commenting Upon Other Professionals and Participants in Legal Proceedings

5. For each of the illustrative statements of fact from In re R.W.W., compare and contrast with the dictionary definitions of the relevant terms from the APA Principles, Standards and Guidelines 

Avoid  –  Deceptive  –  Deny  –  False  –  Fraud  –  Fraudulent  –  Impartial  –  Inaccurate  –  Misleading  –  Misrepresentation  –  Subterfuge  –  Subvert

NOTE – Never ask for an explanation.  Always ask for agreement with the obvious conclusion, for example:

When you stated [insert statement of fact], you were attempting to avoid an honest and fair description of the facts.  Correct?

or

When you stated [insert statement of fact], you were attempting to mislead the court concerning [insert statement of fact].  Correct?

______________________________________________________________________

[1] See supra notes 55 through 71 and accompanying text regarding the voir dire performed in D.T. v. N.O., No. DR 13, (Gunnison County, Colo. Dist. Ct. 2014).

[2] In re R.W.W., 2017 MT 174N, 400 P.3d 230.

[3] Apologies to Bill Maher. See, e.g., Real Time with Bill Maher: I don’t know if for a fact… I just know it’s true (HBO television broadcast Mar. 30, 2019) http://www.real-time-with-bill-maher-blog.com/index/2019/3/30/i-dont-know-it-for-a-facti-just-know-its-true.

[4] See John H Duehr, Montana Judges Deskbook 136 (Montana rev. ed. 2010 (“You do solemnly swear (or affirm, as the case may be) that the evidence you will give in this issue (or matter), pending between ……. and ……., is the truth, and nothing but the truth, so help you God.”

[5] https://courts.mt.gov/Portals/189/lcourt/deskbook/2010_Deskbook.pdf

[6] Wolf Tr., supra note 199, at 28 (regarding testimony never excluded), at 178 (regarding the last case the O’Rourke judge ever heard), at 180 (regarding the O’Rourke expert being investigated by the FBI), at 181 at 180 (regarding the O’Rourke judge being forced to resign).

[7] See, e.g.: State v. Nicklasson, 967 S.W.2d 596, 617 (Mo. 1998) (Trial court properly excluded Geffner’s testimony); Nicklasson v. Roper, No. 03-8001, 2005 WL 1005126, at *9 (W.D. Mo. Apr. 26, 2005) (Geffner’s opinion properly excluded); State v. French, 129 P.3d 581 (Table), 2006 WL 407712, at * 5 (Haw. Feb. 17, 2006) (Geffner precluded from testifying); Beam v. Beam, 310 P.3d 1047 (Table), 2010 WL 4609356, at *8 (Haw. Ct. App. Nov. 15, 2010) (Family court refused to allow Geffner’s testimony); State v. Jacobson, 418 P.3d 960, (Ariz. Ct. App. 2017) (Geffner’s opinion evidence rejected).

[8] Geoffrey M. Reed, Christopher J. McLaughlin & Russ Newman, American Psychological Association policy in context: The development and evaluation of guidelines for professional practice, 57 Am. Psychologist 1041-1047 (2002) (Describing the manner in which standards and guidelines such as the EPPCC and SGFP are developed and their intended application to all psychologists). NOTE: When dealing with psychologist witnesses, it is often necessary to have on hand the relevant state board of psychology statements that the board relies upon the standards and guidelines of the American Psychological Association and in some cases, additional rules promulgated by the specific board, in the evaluation of proper professional behavior by psychologists.

[9] See Ethical Principles & Standards, supra note 47, at D.

[10] See Ethical Principles & Standards, supra note 47, at C, 5.01.

[11] See Specialty Guidelines, supra note 48, at 9.01.

[12] See Ethical Principles & Standards, supra note 47, at C, 5.01.

[13] See Specialty Guidelines, supra note 48, at 1.01, 20.7.

[14] See Specialty Guidelines, supra note 48, at 1.01, 11.01.

[15] See Specialty Guidelines, supra note 48, at 9.03.

[16] mont. code ann. § 45-7-201 (2019) (“A person commits the offense of perjury if in any official proceeding the person knowingly makes a false statement under oath….perjury shall be punished by imprisonment in the state prison for any term not to exceed 10 years or be punished by a fine of not more than $50,000, or both.”) See also Elements of Perjury, United States Department of Justice, Criminal Resource Manual § 1745 (“The first element of a perjury offense is that the defendant must be under oath during his testimony, declaration or certification.”) Id. at § 1746 (“The second essential element of a perjury offense is that the defendant must have made a false statement.”) Id. at § 1747 (“The third element of a perjury offense is proof of specific intent, that is, that the defendant made the false statement with knowledge of its falsity, rather than as a result of confusion, mistake or faulty memory.”) Id. at § 1748 (“The false statement must be material to the proceedings. A false statement is material if it has ‘a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed.’”)

[17] Reed et al., supra note 231. Try to avoid chasing the psychologist around the courtroom to establish that the relevant principles, standards and guidelines are authoritative and must be followed. Instead, refer to code’s introduction: “The Ethical Standards set forth enforceable rules for conduct as psychologists.”  Ethical Principles & Standards, supra note 47, at Introduction and Applicability. Also refer to guidelines for forensic work: “These Guidelines apply in all matters in which psychologists provide expertise to judicial, administrative, and educational systems….” Specialty Guidelines, supra note 48, at Introduction.

[18] All psychologists are required to follow. Ethical Principles & Standards, supra note 47, at Introduction and Applicability.

[19] All psychologists are required to follow. Specialty Guidelines, supra note 48, at Introduction.

[20] Wolf Brief, supra note 194; Wolf Reply Brief, supra note 222.

The Spread of Misinformation

Posted on by Shawn Wygant

In this continuation from PsychLaw.net’s earlier blog regarding the spread of misinformation, PsychLaw.net describes the damaging effect of testimony such as Silberg’s and why that testimony was not admissible in court.

K.M. v. S.M.M., New Jersey, 2011

In the New Jersey high-conflict case of K.M. v. S.M.M.,[1] a conscientious trial judge spent approximately 70 days over four years during 2006–2009 in hearings and issued numerous oral rulings and three separate comprehensive written opinions to detail an alienating mother’s manipulation and false allegations. [2]

Beginning in 2005 while the parties were separated, Mother obtained a temporary restraining order prohibiting Father from contacting her or the parties’ children, aged 3½ and 6.  As a result, the oldest was evaluated by a crisis mental health evaluator, and the evaluator recommended Father’s parenting time be restored.  Later, in 2006, when she answered Father’s complaint for divorce, Mother responded with allegations that Father had sexually abused the two children. These latest allegations were discredited, as the oldest child showed no signs of sexual abuse when she was evaluated just months before. In response to the investigation by the Department of Youth and Family Services (DYFS), however, the court directed that Mother’s parenting time with her children be supervised and also ordered the children see a therapist.

Undeterred, Mother’s allegations continued. Numerous law enforcement, DYFS, and mental health professionals became involved over the four years of this tragic story, with the professional child abuse specialists unanimously finding no signs of sexual abuse. One expert, while interviewing Mother and asking if she could “accept the possibility that any of the information” of sexual abuse was false, noted that “[Mother] proceeded to ‘faint’ in the therapist’s office. She lay down on the floor and did not get up or respond until the therapist announced to her that he was going to call 911.”[3] With another evaluator, Mother insisted Father had been diagnosed with an Axis II disorder, and when confronted with the fact that he had not, Mother was upset and refused to accept the fact.

Other expert evaluators interviewed Oldest Child and found her statements to be unreliable “because of her lack of sadness or anxiety when reporting the incidents.”[4] An experienced evaluator also noted that “neither child avoided physical contact with [Father] and were comfortable being close to him physically.”[5] Still other well-trained and experienced evaluators found the oldest to be “very prepped,” and were struck by the incongruity of Oldest Child’s “ease, comfortable demeanor in discussing very disturbing topics.”[6]

With evidence of Mother’s manipulation and false allegations mounting, Mother retained Dr. Silberg.[7] Father moved for an order in limine to exclude Dr. Silberg and her testimony. A 7-day N.J.R.E. 104 hearing was conducted with the testimony and evidence recorded in what the appellate court described as “painstaking detail.”

Father presented the testimony of an expert who opined that Dr. Silberg’s interview of the child and the report she issued “violated the mandated procedures adopted by their profession.”[8] The expert went on to testify that Dr. Silberg failed to consider the full gamut of source materials, and that “the sources Dr. Silberg utilized, the short interview with mother, the fifty-minute interview with [Child] and the behavioral checklist mother prepared were insufficient sources for a forensic interview leading to a scientifically reliable conclusion.”[9] As the attorney’s examination of Father’s expert revealed and the Court found, Dr. Silberg in her testimony may have violated APA ethical code and guidelines that require knowledge of the area and use of established science, as well as those that prohibit bias.[10]

After extensive voir dire, the trial court noted inter alia:

(1)  Before interviewing the child, Dr. Silberg spoke with Mother’s attorney, “who informed her of the ‘urgency’ in . . . issuing a report because father was seeking parenting time and [the] report was being used in support of mother’s opposition.”

(2) Prior to the interview with the child, Dr. Silberg spoke with Mother “for about twenty minutes about [Mother’s] sexual problems with father and that mother had told her it was consistent with what he did to the children.”

(3) Dr. Silberg had a “symptom checklist” that corroborated abuse, but it was the Mother, not the child, that responded to it.

(4) And, the only recording, audio, shut off many times during Dr. Silberg’s evaluation of the child.[11]

In entering his order excluding Dr. Silberg and her opinions, the trial judge noted:

The court finds Dr. Silberg’s conduct in doing an “urgency” interview was a deliberate attempt in haste to present [an] “opinion” to the court which had no scientific basis and clearly was not founded on the “totality of the circumstances” known to or should have been known to Dr. Silberg as mandated by the professional guidelines and requisite findings made by the New Jersey Courts …. Dr. Silberg by her interview tested no plausible “rival” hypothesis under the “totality of the circumstances” in this case.[12]

The court ultimately awarded sole custody to Father as well as attorney and expert fees of nearly two million dollars.

In the case M. v. S., Maryland, 2018, PsychLaw.net  shows how Silberg’s reports concerning PA affected this case.

In M. v. S.,[13] Mother and Father had one child “J.” born in January 2010 and their divorce was finalized in December 2011. Under the terms of the 2011 decree, Mother was awarded sole physical custody of J., both parties shared legal custody, and Father was to be allowed visitation. Following their separation, Mother began to make allegations that Father had assaulted her and abused J. None of these allegations was substantiated by law enforcement or social services.[14] However, as protective orders had issued with many of these new allegations, Father was denied visitation with J. repeatedly and for extended periods of time.[15] During the time that Father did not see him, J. had become uncontrollable, was aggressive to others, and had been expelled from his preschool for behavioral reasons[16]. By January 2015, the circuit court had had enough and issued an order finding Mother in “willful contempt” for her “failure to permit” Father access to his child.[17]

Then, Mother sought out Dr. Silberg for therapy for J. and in July 2015, Dr. Silberg first requested Father not visit the child “for a couple of weeks,”[18] which turned into five months.[19] Then in contrast to a report from a court-ordered psychological evaluator, Dr. Silberg issued a report concluding that J. suffered from posttraumatic stress disorder (PTSD).[20] The court ordered another evaluation from an experienced psychologist who concluded that J. suffered from disruptive behavior disorder but saw no evidence of abuse or anything that would have suggested abuse.[21]

The judge appointed a best interest attorney (BIA) for J. and in October of 2015 a custody evaluation was ordered.  As part of the evaluation, a meeting that included the BIA, Father, Mother, the evaluator, and the child was scheduled in December 2015.[22] Mother defied the Court’s specific order to drop J. off at the front of the courthouse, parked “some distance away,” and when the evaluator and the child’s BIA found them, 5-year-old J. ran away.[23] Instead of going after the child, Mother telephoned Dr. Silberg “while recording the incident on her cell phone.”[24] A deputy sheriff finally caught the child who “started screaming” and punching the deputy, and told his mother upon his return that he “wouldn’t let them trick me.”[25]

As a result of Mother’s remarkable conduct, Father and the BIA filed a joint motion for emergency hearing alleging: “J.’s best interest had been ignored, that Dr. Silberg had breached applicable standards of care and should be replaced as J.’s therapist.”[26] The next day the judge entered an order regarding Christmas visitation.[27] Mother ignored parts of it, but finally delivered the child to Father in the evening, and over the next two days, Father was never alone with J. as there were always other family members present or they were in public.[28]

A subsequent second court-ordered visit, for New Year’s Day 2016, was missed because Mother reported that 6-year-old J. had been yelling and screaming so violently that he was taken to the hospital. During that hospitalization, Dr. Silberg filed a report with Child Protective Services (CPS), alleging that Father had abused J. during the Christmas visit when Father was never alone with J.  Like all of Mother’s previous allegations, CPS thoroughly investigated this latest complaint, and as the judge wrote, the allegations were simply “ruled out.”[29] Days after the child’s hospitalization, the Court placed J. in the temporary legal and physical custody of his paternal uncle and aunt, and in their care J. displayed a marked improvement in behavior.[30]

The court then conducted a nine-day trial ending in May 2016. She went through reams of documents and heard from numerous witnesses.[31] Several witnesses described Mother’s emotional outbursts, melt-downs, and psychiatric illness.[32] According to the record, a psychiatrist who was ordered to evaluate the parties hypothesized that Mother’s emotional behavior and distortion of other people’s motives could trigger some of J.’s anger and emotional turmoil.[33]

During her testimony, Dr. Silberg opined that the child suffered from PTSD as a result of father’s physical and sexual abuse.[34] The court was concerned with Dr. Silberg’s refusal to accept alternative explanations for J.’s issues and expressed concern that Dr. Silberg seemed “unpersuaded” by the fact that J.’s “behavioral difficulties, acting out, disclosures of abuse, meltdowns, needs for psychiatric intervention, et cetera, had all but disappeared since J. was placed with his aunt and uncle.”[35] The judge noted that this seemed to have no impact on Dr. Silberg, who was completely credulous even for the most ridiculous statements the child made, “such as the dog unlocking the closet door.”[36]

The court also described Dr. Silberg as clearly biased, not credible, and with compromised professional boundaries.[37] Perhaps most striking, the judge characterized as a “most glaring example” of untruthful statements Dr. Silberg’s description of the scene when the child ran away at the courthouse, where Dr. Silberg described, contrary to other evidence, that Mother was “very appropriate in her talking to J. in encouraging him to please go to the appointment.”[38] The court countered: “This is clearly not what happened. I saw the video.”[39]

A skilled attorney preparing a voir dire could use the judge’s description of Dr. Silberg’s conduct to inquire into violations of the APA guidelines and its ethical code by letting bias affect her work, being untruthful and not using established science in presenting her professional opinion.[40] Indeed, after observing Dr. Silberg’s conduct, Judge Kramer wrote:

“The court finds Dr. Silberg’s testimony was not credible. She appears to have compromised her professional boundaries …. She gave advice to Mother that was personal and had no relevance to J.’s treatment …. There were statements in her report that were untrue and clearly biased toward Mother.”[41]

On the day the trial ended, Judge Kramer issued an order that Father would have sole legal and physical custody of J. and that Mother would be entitled to supervised visitation, which could only occur during therapy sessions with J.’s treating therapist, no more than once every two weeks.[42]

_______________________________________________________________________________________________________________

[1] K.M. v. S.M.M., No. A-0135-09Tf, 2011 WL 3176534, supra note 76 (N.J. Super. Ct. App. Jul. 28, 2011).

[2] Id.

[3] Id. at * 8.

[4] Id. at *9.

[5] Id.

[6] Id. at * 10.

[7] Id.

[8] Id. at *24-25.

[9] Id.

[10] Ethical Principles & Standards, supra note 47, at C, D, 2.03, 2.04, 9.01. Specialty Guidelines, supra note 48, at 2.02.

[11] K.M., 2011 WL 3176534, at * 22.

[12] Id. at * 23. For specific ethical rules an examining attorney could argue that Dr. Silberg may have violated see Ethical Principles & Standards, supra note 47, at D, 2.03, 2.04, 5.01, 9.01. Specialty Guidelines, supra note 48, at 2.02, 9.03, 11.01.

[13] Marks v. Schenk, No. 13-C-10-85215, 2018 WL 775420, at *1 (Md. Ct. App. Feb. 5, 2018).

[14] Id. (“Ever since [entry of the custody decree] Ms. [] had made numerous allegations that Mr. [] had abused J. and had assaulted her. None of those allegations had ever been substantiated. As a result of those repeated allegations, protective orders were granted, and Mr. [] was denied visitation with their son repeatedly and over extended time periods.”)

[15] Id.

[16] Id.

[17] Id. at *2.

[18] Id.

[19] Id.

[20] Id.

[21] Id. Note that after this experienced psychologist earned her doctorate with an emphasis on young children, she completed an internship and a two-and-a-half-year postdoctoral fellowship at the John Hopkins University School of Medicine – Department of Pediatrics and the prestigious Kennedy Krieger Institute – Department of Behavioral Psychology.  She went on to become a staff psychologist, then Director of Clinical Services for the Behavior Management Clinic at Kennedy Krieger. During her tenure at the Institute, she provided direct clinical supervision and ongoing training of graduate level externs, doctoral level interns and postdoctoral fellows.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at *3.

[28] Id.

[29] Id. at *7 n. 11.

[30] Id. at *3.

[31] Id. at *7 n. 11.

[32] Id. at *8-9 (“Mother … herself had been diagnosed with PTSD, has apparently suffered from that since she was a teenager …. A number of witnesses … testified about witnessing Mother having emotional outbursts or meltdowns in the past.”)

[33] Id. at *9.

[34] Id. at *7-8.

[35] Id. at *8.

[36] Id. at *8-9.

[37] Id. at * 9.

[38] Id.

[39] Id.

[40] Ethical Principles & Standards, supra note 47, at D, 2.04, 5.01.

[41] Marks, 2018 WL 775420, at *9.

[42] Id. at *6-7. The record is clear that the court heard from and trusted the opinions of many professionals in the case: Ms. Elizabeth Benitz, the visitation supervisor; Reagan Kinnear, Ph.D., the clinical psychologist from the Kennedy Krieger Institute; Doris Meredith, a social worker from the Howard County Department of Social Services and Douglas W. Heinrichs, M.D., the psychiatrist who evaluated the parties.

The Spread of Misinformation Regarding Parental Alienation: A Case Study of Dr. Robert Geffner and Dr. Joyanna Silberg

Posted on by Shawn Wygant

At  PsychLaw.net,  we are aware that there are very many people who are misinformed and who spread this misinformation throughout the psychiatric and legal communities. The recently published book, Parental Alienation — Science and Law, provides many examples of misinformation regarding PA, which have typically been published in journal articles and books intended for mental health and legal professionals.  The chapter authors have identified the misinformation and refuted it through the use of scientific studies and peer reviewed professional literature.  Here, we provide examples of misinformation that have been presented in legal settings, especially by psychologists.  There are numerous examples of psychologists failing to comply with the APA’s standards and guidance.  We use Robert Geffner, Ph.D., and Joyanna Silberg, Ph.D., as examples of psychologists who have presented questionable testimony in legal settings.  On the bright side, there are experienced attorneys and judges who have been able to recognize problems in time to exclude unreliable, unhelpful, or unqualified testimony. While some of this unwanted “expertise” is captured in voir dire, other problems can be discovered during cross-examination or by a savvy trial court.

TESTIMONY BY ROBERT GEFFNER, PH.D.

Dr. Geffner has a Diplomate in Clinical Neuropsychology, is Board Certified in Couple & Family Psychology, and is an editor of a handful of peer-reviewed journals. An outspoken PA denier, Dr. Geffner has published several articles challenging the validity of PA.[1] Were education and experience the only criteria for admitting expert testimony, Dr. Geffner would appear to be well-qualified to provide an opinion in PA cases. Through proper examination and voir dire, however, several instances where Dr. Geffner attempted to proffer problematic unreliable testimony were identified, and his proposed testimony discredited.  Here are illustrations for attorneys developing voir dire questions.

In re Adoption of Joshua S., California, 2005 [2]

The California case of In re Adoption of Joshua S. involved the adoption of an artificially inseminated child by the same-sex partner of the mother. Approximately 13 months after their second child was born but before his adoption was completed, the parties’ relationship eroded to the point that the partner left the family residence.[3] During proceedings by the partner to enforce an adoption agreement entered while the two were still a couple, Mother alleged the agreement was the result of “fraud or duress,” and she later obtained a “domestic violence restraining order” against her former partner.[4]

The trial court ultimately concluded that it was in the child’s best interests that the adoption go forward[5]. In doing so, it rejected the testimony of Mother’s expert on domestic violence, Dr. Geffner, which it found to be “interesting in the abstract but not applicable to the best interest determination … [as] there is no evidence that these boys are being exposed to any continuing domestic violence.”[6]

“No evidence” of the domestic violence alleged by Mother is an important phrase in this opinion. It appears she hired Dr. Geffner to bolster her claim.[7] While it is not clear if the complete lack of evidence—“no evidence”—was adduced by a prepared cross-examiner, Dr. Geffner’s testimony would have been exposed by an adequate voir dire.  Did they inquire into Dr. Geffner’s methods, including whether he had examined the people involved or simply relied on a record review?[8] Did the attorney then contrast his method and preparation with the clear finding of “no evidence?” In any event, the trial court’s rejection of Dr. Geffner’s opinion was affirmed by the three-judge panel of the California Fourth District Court of Appeal.[9]

Dr. Joyanna Silberg is a psychologist, Senior Consultant for Child and Adolescent Trauma with the Sheppard Pratt Health System, and Executive Vice-President of the Leadership Council on Child Abuse & Interpersonal Violence. She has written and edited books on child abuse and trauma and is a PA denier who frequently speaks and presents on the topic. Like Dr. Geffner, on paper it would appear that Dr. Silberg is qualified to provide an opinion on PA. However (also like Dr. Geffner), savvy trial courts and litigators have revealed on numerous occasions that her knowledge or her methods or her familiarity with and reliance on the actual facts of the case were insufficient to enable her to provide reliable expert testimony. Here are some cases in which Silberg testified that demonstrate this that we at  PsychLaw.net have found.

Volodarsky v. Tarachanskaya, Maryland, 2006

In Volodarsky v. Tarachanskaya, a mother waged a years-long campaign of unsubstantiated allegations and alienation from the moment of the child’s birth.[10] Mother’s various claims included that the child would return from Father’s care smelling of smoke, hungry, and bruised, and that Father physically and sexually abused the child.  And with each new allegation, Mother unilaterally suspended visitation. As each allegation was returned unsubstantiated by investigating social workers, Mother continued to withhold visitation, and eventually the court ordered a psychiatric evaluation of both parents. Mother was revealed to have “little insight into her part in the current situation …, sees all of the difficulties as related to [Father],” and had no compunction against using the courts to interfere with his visitation.[11]

Mother hired Dr. Silberg, who seemed to confirm Mother’s allegations, perhaps to rehabilitate Mother’s position. Dr. Silberg testified to clear “evidence” that Father was abusing the child, and testified that “it is simply impossible to explain the level of symptoms that [Child] is suffering from …. [T]he child is seriously at risk of abuse,” and that the child’s statements were “so vivid and accurate that only real experience could produce these reports.”[12] After that testimony was presented, the cross-examiner could argue that Dr. Silberg may have violated the APA guidelines and ethical codes related to dishonesty, giving professional opinions about people they haven’t met, and bias.[13]

Father countered Dr. Silberg’s testimony with that of two experts. Shockingly, one expert testified that the child only reported abuse when Dr. Silberg, whom the child identified as “mommy’s friend,” was mentioned. In Volodarsky, the court found that Father was not sexually abusing the child.[14]

L.S. v. C.T., South Dakota, 2009

In the South Dakota case of L.S. v. C.T.,[15] Mother and Father separated when Child was just three months old. Child resided primarily with Mother in another state, and Mother began making allegations of sexual abuse by Father when Child was age two. Investigations were conducted by law enforcement and child protective services in both states, with all determining the allegations were unfounded. Just over a year later, Mother made new allegations of sexual abuse.  There were no other indications of abuse, and the second CPS investigation was returned “unsubstantiated.”[16]

Nine months later, Mother made a third allegation of sexual abuse, and this last was tried over three days, during which 16 witnesses testified. Mother testified that Child reported to her that Father fondled and “poked” at Child’s genitalia and that, when Child returned from visitation with Father, she would “demonstrate how she tried to resist the abuse by holding her legs together.”[17] On the other hand, a senior investigator who looked into these latest allegations of abuse testified that he had concluded after his interview with the child, whose statements varied and contradicted one another, “that there is a high probability that she has been led.”[18] 

This opinion was mirrored by another investigator, who had concluded that Mother was trying to “sabotage”[19] the parent–child relationship. The experienced investigator also testified Mother traveled to various law enforcement, child protection agencies, child advocacy centers, and medical personnel in South Dakota and Nebraska to find someone who would identify child abuse.[20]

The child also displayed other symptoms of alienation, including that she “could not indicate one good quality about her father.”[21] As this evidence of manipulation and alienation piled up, Mother hired Dr. Silberg who met with the child once, the day before testimony.[22] Dr. Silberg testified that per the “testing” used, Child’s scores were “literally off the charts”[23] in comparison to other children who had been sexually abused, and that Child was a “severely traumatized child with an inordinate number of symptoms of both trauma and sexual preoccupation.”[24] Dr. Silberg further opined that “it would be dangerous even for supervised reunification because the child presumes that the abuse must have been okay if nobody is saying anything to them about it.”[25]

It is likely that Dr. Silberg’s testimony would have been excluded if a proper voir dire had occurred.  For example, the prepared cross examiner could endeavor to show that Dr. Silberg may have violated the professional guidelines and ethical codes that require knowledge, using established science in the area of work, and prohibiting distorting evidence and intentionally misstating facts and bias.[26] Luckily, an experienced forensic examiner fully countered Dr. Silberg’s L.S. v. C.T. testimony. The trial court refused to sustain Mother’s latest allegations and ruled against the protective order Mother was requesting.[27]

________________________________________________________________________

[1] See e.g. A.H. Sandoval & Robert Geffner, PAS/PAD versus negative parental influence or toxic denigration, Am. Prof. Soc. of the Abuse of Child. Advisor (Special Issue) (2019 accepted for publication).

[2] In re Adoption of Joshua S., No. D045509, 2005 WL 2885809 (4th Dist. Cal. App. Nov. 3, 2005).

[3] Id. at *2.

[4] Id.

[5] Id. at *16.

[6] Id.

[7] If true, this would potentially violate ethical principles and standards that prohibit bias, intentional misstatement of facts and distorting evidence in a report. Ethical Principles & Standards, supra note 47 and Specialty Guidelines, supra note 48, at 1.01, 9.01 and 11.01.

[8] The reader is reminded that psychologists should not provide opinions of the psychological characteristics of people they haven’t met, and also that when a record review is solely relied on, the psychologist must explain this and its limitations. Ethical Principles & Standards, supra note 47, at 9.01. However, psychologists may conduct a record review, for which “an individual examination is not warranted or necessary,” but they must “explain this and the sources of information on which they based their conclusions or recommendations.” Id. Moreover, “forensic practitioners [must] strive to make clear the impact of such limitations on the reliability and validity of their professional products, opinions, or testimony.” Specialty Guidelines, supra note 48, at 9.03.

[9] In re Adoption of Joshua S., No. D045509, 2005 WL 2885809, at *17 (4th Dist. Cal. App. Nov. 3, 2005).

[10] Tarachanskaya v. Volodarsky, 897 A.2d 884 (Md. Ct. Spec. App. 2006), rev’d on other grounds, 916 A.2d 991 (Md. 2007).

[11] Tarachanskaya, 897 A.2d at 889; Volodarsky v. Tarachanskaya, 916 A.2d 991, 993, 994(Md. 2007)

[12] Tarachanskaya, 897 A.2d at 891.

[13] Ethical Principles & Standards, supra note 47, at C, 5.01, 9.01.

[14] Tarachanskaya, 897 A.2d at 892-894; Volodarsky, 916 A.2d at 1001. Note that in addition to the potential ethical violations for which Dr. Silberg could have been examined previously identified, she also could have been questioned about her duty to minimize foreseeable harm. Ethical Principles & Standards, supra note 47, at 3.04.

[15] L.S. v. C.T., 2009 SD 2, 760 N.W.2d 145 (S.D. 2009).

[16] Id. at ¶ 6, 760 N.W.2d at 147.

[17] Id. at ¶ 9, 760 N.W.2d at 148.

[18] Id.

[19] Id. at ¶ 7, 760 N.W.2d at 147.

[20] Id. at ¶ 20, 760 N.W.2d at 150.

[21] Id. at ¶ 30 n. 8, 760 N.W.2d at 153.

[22] Id. ¶ 13, 760 N.W.2d at 148.

[23] Id. ¶ 13, 760 N.W.2d at 148-49. Note, the record is unclear but Dr. Silberg may have been describing Mother’s responses to Friedrich’s Child Sexual Behavior Inventory, which is not intended to make the diagnosis of CSA by itself.  The CSBI is a questionnaire, listing 36 behaviors, which are thought to be associated with sexualization.  It asks a parent to “Please circle the number that tells how often your child has shown the following behaviors recently or in the last 6 months.” Each behavior may be rated as: “never”; “once monthly”; “1–3 times monthly” or “at least once weekly.” William N. Friederich et al., Child Sexual Behavior Inventory: Normative and Clinical Comparisons, 4 Psychol. Assessment  303-311 (1992). In high-conflict families, use of the CSBI with one of two polarized parents is subject to serious concerns about validity and reliability. For a discussion of the various types of validity and reliability, see Demosthenes Lorandos & Terence W. Campbell, Benchbook in the Behavioral Sciences:  Psychiatry – Psychology – Social Work 359, 373 (2005).

[24] L.S., at ¶ 13; 760 N.W.2d at 149.

[25] Id.

[26] Ethical Principles & Standards, supra note 47, at C, D, 2.03, 2.04, 9.01. Specialty Guidelines, supra note 48, at 2.02.

[27] L.S., at ¶ 33, 760 N.W.2d at 155. See also Ethical Principles & Standards, supra note 47, at C, D, 2.03, 2.04, 5.01. Specialty Guidelines, supra note 48, at 11.01.

Allegations of family violence in court: How parental alienation affects judicial outcomes.

Posted on by Shawn Wygant

What the study found…

We tested a set of findings reported by Meier (2019) related to the use of parental alienation (PA) as a legal defense in cases in which there are allegations of domestic violence and child abuse. A total of 967 appellate reports in which PA was found or alleged were sequentially selected from a legal database search. Nineteen research assistants blind to the study’s hypotheses coded the reports for the variables used to test six pre-registered hypotheses using a series of logistic and linear regression models.

We failed to find any support for the conclusions made by Meier (2019). Parents found (versus alleged) to alienate their children, regardless of their gender, had greater odds of losing parenting time, losing custody of their children, and losing their case. These findings held even when the accusing parent had been found to have been abusive. Losses or decreases in custody were not found when the (alleged) alienated parent was found to have been abusive. Results indicate that the majority of courts carefully weigh allegations of all forms of family violence in their determinations about the best interests of children.

These findings, along with several others, raise concerns that the methodological, analytical, and statistical problems we detail about Meier’s report (2019) make her conclusions untrustworthy. Discussion focuses on the importance of using open science practices for transparent and rigorous empirical testing of hypotheses and the dangers of misusing scientific findings to mislead influential professionals who affect the well-being of millions of families.

Harman, J. J., & Lorandos, D. (2020, November 19). Harman & Lorandos (2020). Preprint of Allegations of Family Violence in Court: How Parental Alienation Affects Judicial Outcomes. https://doi.apa.org/doiLanding?doi=10.1037%2Flaw0000301

Intervention Options for Alienated Children and Their Families

Posted on by Shawn Wygant

We at PsychLaw.net have found that discussions in the social science literature describe few options for children who suffer severe and unreasonable alienation from a parent and highlight the ineffectiveness of available remedies.  For example, Rand, Rand, and Kopetski (2005) reported the failure of traditional psychotherapy in their follow-up study of the 45 children from 25 families Kopetski had studied over 20 years starting in 1976.  A range of moderate to severe PAS characterized those cases. Alienation was interrupted by judicial action for 20 children from 12 families where there was enforced visitation or a change of custody. But for those in the treatment group where there were only orders for therapy and gradually increased access, alienation remained uninterrupted and in some cases became worse.  

 Qualitative case studies and experienced clinicians have found that traditional psychotherapy as the primary intervention simply does not work in severe and even in some moderate alienation cases (Clawar & Rivlin, 1991; Dunne & Hedrick, 1994; Gardner, 2001; Kopetski, 1998a, 1998b; Kopetski, Rand, & Rand, 2006; Lampel, 1996; Lowenstein, 2006; Lund, 1995; Rand, 1997b; Rand, Rand, & Kopetski, 2005). Fidler and Bala (2010) concluded that “all severe and some moderate cases of alienation … are likely to require a different and more intrusive approach if the relationship with the rejected parent is not to be abandoned and the alienation is to be successfully corrected.” 

 A reunification option, short of reversing custody, is for the court to order a prolonged period of residence with the target parent, such as during the summer or an extended vacation, coupled with counseling and temporarily restricted or suspended contact with the alienating parent. This arrangement, which in the long run provides less disruption and greater continuity of care, may in some cases be more appropriate than reversing custody permanently.  This period of prolonged residence affords the child and target parent the uninterrupted time and space needed to repair and rebuild their relationship, assuming that the alienating parent either relinquishes their malicious efforts or gives up trying to destroy the target parent’s relationship with the alienated child.  

 Warshak (2010b) and Warshak and Otis (2010) offered an alternative approach called Family Bridges, in which the target parent and the alienated child travel to a program site – a family home, hotel or vacation resort – for four consecutive days.  The alienated children and the target parent share their experiences with one another and re-examine their assumed, indoctrinated false beliefs to which the children have become accustomed.  In commenting on Family Bridges, Kelly (2010) wrote that the daily structure and other program components were guided by well-established evidence-based principles and incorporated multimedia learning, positive learning environment, focused lessons addressing relevant concepts, and learning materials providing assistance with integration of materials. She noted that the lessons and materials were drawn from universally accepted research in social, cognitive, and child developmental psychology, sociology, and social neuroscience. Another important feature of Family Bridges, wrote Kelly (2010), is the safe atmosphere created by the program leaders from the very beginning.  She saw this as an essential feature of the program that promotes more willing participation and active learning. See Chapter 5 for a more complete discussion of Family Bridges. 

 Another approach to bringing the alienated child back into a relationship with the target parent that we at PsychLaw.net have looked into is the development of a comprehensive reunification plan.  Reunification therapy is generally a one-time opportunity, so it needs to be done correctly from start to finish.  Usually, the alienated child is resistant and must be “forced” to meet with the target parent.  Also, the alienating parent may publicly support the idea of reunification but will privately engage the child, and often alienation allies as well, to sabotage and undermine the therapeutic effort. Thus, the likelihood of success becomes minimal without good planning.  Frequently, it is helpful for the court to appoint an independent expert or an expert retained by the target parent to conduct a study and formulate a well-developed plan or blueprint for all the parties to follow.  The reunification planner may be a different MHP than the reunification therapist.   

 Most MHPs acknowledge that they have neither the training nor experience to work as a reunification specialist.  Generally, the reunification specialist is contacted by a “selection committee,” which may be comprised of the clients and/or their attorneys.  The selection committee should consider the competence of the prospective therapist, her level of experience, and her willingness to adhere to a well-developed reunification plan developed by an independent evaluator or at least participate in the formulation of an effective approach to reunification as the process unfolds.  (See Chapter 7 for a further discussion of reunification therapy.) 

 Systemic issues in family law create “points of slippage” when the judge is vulnerable to being misled, which is related to: the court’s bias toward the protection of children; the unmatched discretion and latitude of the family trial judge; and the fact that psychological matters are being decided by someone unlikely to be trained in psychology.  Also, attorney representation by its very nature consists of advocating by another non-psychology professional.  Alienation cases are confusing, highly conflictual, and replete with false allegations and questions of credibility.  It takes a skillful MHP to assist the attorney in a consultative role, much like an attorney may rely on a forensic accountant.  A mental health consultant should serve in a non-visible but active role both with the client and attorney, never testifying or blurring the roles of therapy and evaluation.   

 During the initial phase of the consultation, the MHP must determine whether the case involves PA or simply estrangement that resulted from abuse by the rejected parent.  If it is a case of estrangement, we recommend that the mental health consultant offer the client rehabilitative advice and then withdraw from the case.  On the other hand, if it is a case of PA, the mental health consultant as a team member assists in developing an effective strategy from the chronology of the case to the conflicting findings and opinions throughout the case, whether presented in court proceedings, depositions, or collateral contacts. The role of the consultant includes advising the attorney how to challenge therapists, evaluators, guardian’s ad litem (GALs), parenting coordinators, and other lay witnesses and experts involved in the case.  The mental health consultant’s role is confined to “consultation” rather than “collaboration,” the latter term meaning shared authority in making decisions (Bone and Sauber, 2012).

A Brief History of Parental Alienation

Posted on by Shawn Wygant

At PsychLaw.net,we understand that parental alienation has been discussed, debated, and critiqued in the scientific community for half a century. Between 1990 and 2010 there was considerable discussion and debate regarding PA and PAS in the mental health and legal professional literature.  Most of the disagreement related to PAS as it was conceptualized and defined by Richard Gardner, as well as Gardner’s recommendation that cases of severe alienation should be treated by transferring custody of the child from the alienating parent to the target parent.  For example, Gardner was criticized by Faller (1998, 2000), Faller and DeVoe (1995), Bruch (2001), and by Hoult (2006).  In 2001, Kelly and Johnston critiqued Gardner’s definition of PAS (which they felt focused too much on the role of the alienating parent) and proposed a reformulation of the phenomenon as “the alienated child” (which focuses more on the feelings and behavior of the child).  See Chapter 10, “The History of Parental Alienation from Early Days to Modern Times,” and Chapter 13, “Parental Alienation Initiatives around the World,” for a more complete discussion of the controversies regarding PA and PAS. 

 In 2000, Elizabeth Ellis published her text Divorce Wars: Interventions with Families in Conflict.  Ellis explained that by the year 2000, the concept of PA had “come to be accepted by clinicians working with families involved in post divorce conflict.” She went on to point out, “Definitions for PAS have been unclear, because clinicians still confuse a child’s symptoms with the parent’s behavior and the qualities of the relationship between the child and the alienating parent” (p. 227).  Ellis offered a brief review of folie à deux and suggested that it involved striking similarities to PAS.  In folie à deux, the primary individual who is dominant in the relationship gradually imposes his or her delusional system on the more passive, initially healthy second person (p. 218). 

In 2010, Joan Kelly pointed out that there was “broad consensus among the mental health and family law community that the risk of child alienation is increased in highly conflicted separations accompanied by protracted adversarial child custody disputes” (Kelly, 2010). She commented that while case analysis and research improved our understanding with respect to PA, there existed ample frustration about the “surprisingly little progress made by courts in successfully dealing with these cases in the past 30 years.” 

 While some MHPs and attorneys reject the concept of PAS as defined by Gardner, almost all mental health and legal professionals accept the general definition of PA used in this book.  That is, almost all mental health and legal professionals agree that some children – whose parents are engaged in a high-conflict separation or divorce – ally themselves strongly with one parent and reject a relationship with the other parent without legitimate justification.  In an informal poll of members of the Association of Family and Conciliation Courts, which occurred in 2010, 98% of the 300 respondents agreed with the statement, “Do you think that some children are manipulated by one parent to irrationally and unjustifiably reject the other parent?” (Baker, Jaffee, Bernet, & Johnston, 2011). 

Although the great majority of mental health and legal professionals agree that some children of divorced parents manifest PA – as we use the term – there has not been agreement on whether PA should be a formal diagnosis for use by MHPs.  The proposal that PA become an official diagnosis was published in Parental Alienation, DSM-5, and ICD-11 (Bernet, 2010).  See Chapter 15 of this book for an account of the development and submission of proposals that PA be included as a diagnosis in the Diagnostic and Statistical Manual of Mental Disorders and the International Classification of Diseases. 

MHPs sometimes find themselves involved in cases of PA involuntarily and perhaps unwittingly.  For example, a social worker might already be the therapist for a parent, who then divorces and becomes either the alienating or the target parent as the family sinks into an alienation scenario.  Or a school counselor might be working with an overly anxious child, who takes a turn for the worse when his parents divorce and he forms a strong alliance with one parent and rejects the other.  On the other hand, MHPs also become involved in PA cases in a voluntary, knowing manner.  A psychiatrist might agree to conduct a custody evaluation although she realizes that one of the parents has alleged that the child is manifesting PA.  Or, a psychologist might agree to help a child and his mother re-establish a healthy relationship after being alienated from each other for several years. 

 Many MHPs are reluctant to become more than superficially involved in these difficult cases becauseeach parent’s attorney will challenge them unless they support that parent’s position.  Advocacy for one parent leads opposing counsel to attempt to discredit them, disregard their evaluation, or present their work as inadequate in an effort to remove them from the case.  However, some MHPs make the opposite mistake of becoming overly involved in PA situations; for example, trying to be both the child’s therapist and the custody evaluator.  It is almost always risky and hazardous for a MHP to take on multiple roles.  It may constitute an ethical violation, which could be brought to the attention of the state licensing board.  Fidler & Bala (2010) explain that it is very difficult for one MHP to achieve desired objectives and meet the various, complex, and often competing needs of different family members.  Trouble and headaches will certainly be encountered when a MHP assumes dual roles of therapist and decision maker (Bernet, 1983; Bone & Sauber, 2012; Greenberg, Gould, Schnider, Gould-Saltman, & Martindale, 2003; Kirkland & Kirkland, 2006; Sullivan, 2004). 

At PsychLaw.net, we briefly discuss the various roles MHPs occupy in high conflict custody cases: evaluator, therapist, parenting coordinator, reunification specialist, and mental health consultant.  Check out our website for a detailed discussion about the evaluation process, treatment of mild, moderate, and severe cases of PA, reunification therapy, and shaping social policy.

When Voir Dire Goes Right

Posted on by Shawn Wygant

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

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

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

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

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

[2] Id. at 472-73.

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

[4] Id. at 1261-62.

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

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

Book Release: Parental Alienation – Science and Law

Posted on by Shawn Wygant

BOOK RELEASE: PARENTAL ALIENATION – SCIENCE AND LAW

By Demosthenes Lorandos & William Bernet

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

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

Table of Contents

Preface

Section One: Clinical Considerations and Research

1. Introduction to Parental Alienation

2. The Psychosocial Assessment of Contact Refusal

3. Parental Alienating Behaviors

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

5. Parental Alienation and Empirical Research

6. Recognition of Parental Alienation by Professional Organizations

Section Two: Legal Issues

7. Alienating Behaviors and the Law

8. Admissibility of the Construct–Parental Alienation

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

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

11. Parental Alienation: An International Perspective

12. Tips for Expert Testimony

13. Public Policy Initiatives Related to Parental Alienation

Appendices

A. Parental Alienation Terminology and Definitions

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

C. Cases Illustrative of Alienating Behaviors

D. Sample Motion and Brief for Extended Voir Dire

Name Index

Subject Index

List of Cases Index

#parentalalienation #familylaw #science #childabuse #familyviolence

The Construct of PA

Posted on by Shawn Wygant

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

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

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

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

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

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

[1] Fed. R. Evid. 402.

[2] Fed. R. Evid. 403.

[3] Fed. R. Evid. 401.

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

[5] Fed. R. Evid. 701.

Overview of the Rorschach

Posted on by Shawn Wygant

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

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

 

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

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

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

CrossExamining the Clinical Use of the Rorschach 

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

[THE FOLLOWING QUESTIONS ARE TAKEN FROM PRIOR SECTIONS] 

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

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

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

training in the Rorschach] 

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

The “Improved” DSMIV? 

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

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

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

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

 

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

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

 

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

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

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

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

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

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

Attny: Do you know what interrater reliability is? 

Psych: Yes, I do. 

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

Psych: I am not. 

 

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

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

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

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

 

CrossExamining The “Improved” DSMIV 

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

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

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

– [read] – 

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

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

– [ read ] – 

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

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

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

– [ read ] – 

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

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

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

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

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

[USE THE 22 FOUNDATIONAL QUESTIONS FROM PREVIOUS POSTS 

IF YOU HAVE NOT YET DONE SO] 

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

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

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

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

If It Doesn’t Fit…

Posted on by Shawn Wygant

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

As the Mathis panel further explained:

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

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

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

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

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

___________________________________________________________________________________________________________________________

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

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

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

psychotropic medications.

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

[5]        Id. at 748.

[6]        Id.

[7]        Id. at 751.

[8]        Id.

[9]        994 A.2d at 751-752.

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

[11]       Id. at 512.

[12]       Id.

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

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

[15]       323 S.W.3d at 519.

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

[17]       Id. at 706.

[18]       Id. at 706-707.

[19]       Id. at 707.

[20]       Id. at 709.

[21]       932 N.E.2d at 709-710.

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

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

[24]       Id.

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

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

[27]       Id.

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

[29]       Id. 871.

[30]       Id. 872.

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

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

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

[34]       264 F. 3d 321 at 335.

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

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

[37]       264 F.3d 321 at 333 – 334.

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

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

[40]       264 F.3d 321 at 335 & 336.

[41]       264 F.3d 321 at 336.

[42]       264 F.3d 321 at 342.

Evidentiary Rules and Motion Practice

Posted on by Shawn Wygant

At PsychLaw.net we know it is a matter of common knowledge that scientific expert testimony is offered in a very high percentage of American trials.[1]  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).  Muller was a landmark case dealing with social welfare legislation designed to limit the work day of women. These women typically labored in a factory or laundry up to ten hours. In this case, attorney Louis Brandeis accumulated a substantial body of medical and social science research demonstrating the debilitating effect on women and girls of working long hours.  Brandeis presented this material to the United States Supreme Court in a brief defending Oregon’s limits on the number of hours females could be employed.  As the Supreme Court upheld the constitutionality of the legislation, it discussed Brandeis’ social science material.  The Court declared that although they “may not be, technically speaking, ‘authorities’, the studies would nonetheless receive judicial cognizance.”  Since that time, motions and briefs designed to bring the weight of social science research to the attention of the court have been termed “Brandeis briefs”.

In  Muller v Oregon the Court made it clear that it wanted good quality scientific data bearing directly on the issues.  Today, when any court is asked to admit expert testimony as valid science under Daubert, opposing parties may attack the proof as scientifically invalid or questionable by offering counter proofs.[2]  Because of the Federal Rules’ emphasis on liberalizing expert testimony, and the specific requirements of Daubert and Kumho, it is the job of the advocate to lay out the scientific issues for the court’s consideration.  At PsychLaw.net we feel this is best accomplished in motion practice.

Nevertheless there’s a problem.  As Mr. Chief Justice Rehnquist wrote in Daubert:

“I defer to no one in my confidence in federal judges, but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its ‘falsifiability,’ and I suspect some of them will be, too.” Daubert 509 U S 579, 113 S Ct at 2800; 125 L Ed 2d at 485.

The Chief Justice continued by explaining that trial court judges are expected to become “amateur scientists,”[3] and warned that science is an  “unusual subject matter” for the judiciary.  He advocated that the courts should “proceed with great caution . . . because our reach can so easily exceed our grasp”.[4] In any trial where scientific evidence is needed, the “great caution” that the Chief Justice recommends creates a duty and an opportunity for both the advocate of scientific testimony and the would be cross examiner.  The duties and responsibilities created by Daubert and Kumho, to keep “junk science” out, and admit only scientifically reliable and valid expert testimony, are described previously in this chapter.  The opportunity for the attorney advocating the evidence and the would-be cross examiner, is motion practice.

Rules 26(b)(4) and 26(c)(1) of the Federal Rules of Civil Procedure provide for the discovery of facts known and opinions held by experts.  At PsychLaw.net we feel that discovery practice provides the cross examiner with an opportunity to understand the qualifications, grounding and foundational basis of proffered expert testimony.  Similarly, Federal Rule Criminal Procedure 16(a)(1)(E) provides that a summary of proposed expert testimony may be obtained prior to trial and the “summary must describe the witnesses’ opinions, the bases and the reasons therefor, and the witnesses’ qualifications.” And Fed. R. Civ. P. 26(a)(Z)(B) requires the report to contain:

“A complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.”

Today, the cross examiner is faced with a new evidentiary world, where the intent of Federal Rule of Evidence 702 is toward “liberal admission” of proposed expert testimony.[5]  These rule governed reports, and the additional material gained through discovery, must be used by the would-be cross examiner in motion practice. Doing so avoids the unhappy possibility of a trier of fact hearing some damaging “junk science” that forces the cross examiner to play catch up.  For these reasons, we at PsychLaw.net are providing numerous sample motions each accompanied by a memorandum of law.  We have designed  these sample motions and memoranda to demonstrate an integration of the material in the text.  They will also aid the cross examiner in directing the gatekeepers attention to important issues of scientific reliability and validity before a jury is seated.

As unprepared for an analysis of scientific issues as  gatekeepers too often are, they are given broad discretion in evidentiary rulings[6].  As a result, it is particularly important to rely heavily upon pre-trial motion practice and the hearings which should be granted under Daubert and Kumho.  The would-be cross examiner of suspected “junk science” must bear in mind that trial judges are rarely overruled in these decisions.[7]    For these reasons, it is essential to ask for a Daubert hearing.

 

[1].       See, i.e.: Gross, S. R. (1991).  Expert Evidence, Wis. L. Rev. 1113, 1118-19 Presenting the findings of a survey of 529 civil jury trials conducted in California Superior Courts in 1985 and 1986.

[2].       For example, see: U.S. v. Velasquez, 64 F.3d 844, 849-852, 42 Fed. R. Evid. Serv. (LCP) 1175 (3d Cir. 1995) [A drug trial wherein the Third Circuit concluded that it was error to exclude defense evidence on lack of standards in field of handwriting analysis simply because trial court determined that the proof was sufficiently reliable to be admitted under FRE 702.  The Third Circuit appellate panel concluded that expert testimony on handwriting analysis is clearly admissible and decided to apply Daubert in order to be cautious.  As this was a pre Kumho Tire Company, Ltd. v Carmichael, ___ U. S. ___, 119 S.Ct. 1167; 143 L.Ed.2d 238 (1999) case.  Under the Daubert standard, the defense counter proof should have been admitted since “the same considerations that inform the court’s legal decision to admit evidence under Rule 702 may also influence the factfinder’s determination as to what weight such evidence … should receive”.

[3].       Id. 113 S Ct. 2786, at 2800.

[4].       Id. 113 S Ct. 2786, at 2797.

[5].       See, i.e.:Habecker v Cooperloy Corp, 893 F2d 49,  29 Fed Rules Evid. Serv 452 (1990) It is the intent of FRE 702 to endorse the  “liberal admission” of expert testimony, and “liberal qualification” of experts.

[6].       Trial judge has broad discretion. United States v. Shay, 57 F.3d 126, 134 (1st Cir. 1995) Trial court’s decision entitled to great deference).

1st Circuit             United States v. Shay, 57 F.3d 126, 134 (1st Cir. 1995) Trial court’s decision entitled to great deference.

2d Circuit             See, e.g., United States v. Aminy, 15 F.3d 258, 261 (2d  Cir. 1994) In an expert witness / testimony review, the appellate court ruled that it was not error to admit expert evidence that foil wrapping of heroin was similar to that used by known drug dealers.

4th Circuit            See, e.g., Maryland Cas. Co. v. Therm-O-Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998) Daubert  requires only that trial judge make a “preliminary assessment” of whether proffered expert testimony is both reliable and helpful; plaintiffs do not have to prove that assessments of their experts are correct, they only have to  demonstrate that their opinions are reliable.

5th Circuit            Snap-Drape, Inc. v. Commissioner, 98 F.3d 194, 197 (5th Cit. 1997). cert. denied, – U.S. -, 118 S. Ct. 77 (1997) “The decision whether to admit expert testimony is entrusted to the sound discretion of the trial court and is reversible on review only for abuse of discretion.”

6th Circuit            See, e.g., United States v. August, 745 F.2d 400, 407 (6th Cir. 1984) It was not an abuse of discretion to allow a statistician to testify in a case alleging manipulation of blind draw system, that the system assigned cases to judges in intended random fashion.

7th Circuit            See, e.g., United States v. Stevenson, 6 F.3d 1262, 1266 (7th  Cir. 1993) It was not error to allow a drug enforcement agent to testify as an expert on distribution amounts in narcotics case.

8th Circuit            See Johnson Group, Inc. v. Beecham, Inc., 952 F.2d 1005, 1007 (8th Cir. 1991) It was not an abuse of discretion to allow expert testimony despite the possibility that the expert’s testimony included legal conclusions.

10th Circuit          See, e.g., State Office Sys. v. Olivetti Corp., 762 F.2d 843, 845-846 (10th Cir. 1985) It was not an abuse of discretion to allow the testimony of a company president on financial records given the witness’s knowledge and experience.

11th Circuit          See, e.g.,United States v. Burchfield, 719 F.2d  356, 357-358 (11th Cir.1983) It was not an abuse of discretion to permit expert testimony on commonly used counterfeit-bill-passing techniques.

D.C. Circuit United States v. Gatling, 96 F.3d 1511, 1523 (D.C. Cir. 1996) The trial court has broad discretion in determining whether to admit or exclude expert testimony.

[7].       For some recent examples of cases wherein a request has been to overrule an admissibility decision on scientific evidence, see, i.e.:

1st Circuit             See, e.g., United States v. Sepulveda, 15 F.3d 1161, 1183 (1st Cir. 1993) cert. denied, 512 U.S. 1223 (1994) Affirming trial court, both in its denial of motion in limine to exclude expert testimony and in its subsequent decision to strike testimony when cross-examination revealed it to have been based on inadequate foundation.

2d Circuit             See, e.g., Andrews v. Metro North Commuter R.R. Co., 882 F.2d 705,707-708 (2d Cir. 1989) A forensic engineer’s testimony was improper when matters were not “beyond the jury’s ken”.

3d Circuit             See, e.g., Paoli R.R. Yard PCB Litig. v. Monsanto Co., 916 F.2d 819, 855-856 (3d Cir. 1990). cert. denied, 499 U.S. 961 (1991) (Paoli) The trial court’s insistence on certain credentials to qualify witness was abuse of discretion.

4th Circuit            See. e.g., Scott v. Sears, Roebuck & Co., 789 F.2d 10512, 1055-1056 (4th Cir. 1986) An expert’s statistical evidence should have been excluded as unhelpful because it merely repeated common knowledge.

5th Circuit            See, e.g., In re Air Crash Disaster at New Orleans, La., 795 F.2d 1230,1233-1235 (5th Cir. 1986) It was an abuse of discretion to admit testimony where expert’s assumptions had no reasonable basis.

6th Circuit            See, e.g., CMI-Trading, Inc. v. Quantum Air. Inc., 98 F.3d 997, 990 (6th Cir. 1996) The district court “is accorded wide discretion in determining the admissibility of evidence challenged as irrelevant”.

Issues in Diagnosing Parental Alienation

Posted on by Shawn Wygant, MA, TLLP

For many years therapists have shied away from treating clients who suffer from severe personality disorders. In fact, many health insurance companies will deny reimbursement for treating Axis II disorders (Kersting, 2004). Yet, what happens when a parent with a personality disorder fears losing his or her children in a high conflict custody battle? How does that parent cope? According to the literature, many of these vulnerable parents commonly resort to using primitive defenses such as denial, projection, idealization, devaluation, and splitting (Bernet et al., 2017; Gordon et al., 2008; Kopetski, 1998). Continue reading “Issues in Diagnosing Parental Alienation” →

Attribution Bias

Posted on by Shawn Wygant, MA, TLLP

We at PsychLaw.net teach that Attribution theory examines how we seek to explain people’s behavior[1].  We typically attribute the causes of behavior to internal events (the person’s personality) or external events (the situation in which people find themselves). When explaining their own behavior ‑ or the behavior of someone with whom they identify sympathetically people usually invoke considerations of external events.  When assessing the behavior of others however, people characteristically rely on internal events. Asked why Americans defected to the Soviet Union, for example, 80% of a sample of American college students explained the defections on the basis of internal events or personality factors. The students described the defectors’ personalities as “confused, ungrateful, or traitorous.” When asked why Russians defected to the U.S., however, 90% of the students attributed those defections to the oppressive conditions of the Soviet Union[2]. Continue reading “Attribution Bias” →

Posted on by Shawn Wygant, MA, TLLP

Anchoring Biases of Mental Health Professionals

Mental health professionals typically reach judgmental conclusions very early in their interviews; and then, they cling to those impressions even when confronted with contrary evidence.  At PsychLaw.net we consider, for example, a 1964 experiment done by Jerome Bruner at Harvard University[1].  In this experiment, one group of participants (the control group) viewed slightly blurred slides.  Nevertheless, the control group participants could identify the objects on the slides with a relatively high degree of accuracy.  For the other group of participants (the experimental group), the slides were initially so blurry, subjects could not accurately identify the objects.  The experimental group then saw the slides again at a level of clarity equal to what the subjects in the control group saw.  At equal levels of clarity, the experimental participants committed a significantly greater number of identification errors compared to the control group. Why did the experimental group commit this greater frequency of errors? Continue reading →