Tag: Cross Examination

Parental Alienation in U.S. Courts

Posted on by Shawn Wygant

A meme exists that parental alienation is not accepted by the U.S. judicial system. The fact is, parental alienation has a rich history in our court system and courts around the world. PsychLaw.net’s researchers know that two hundred fifteen years ago, the first recorded case resembling parental alienation (PA) was fought out in the courts of England.[1] In the last two centuries, English-speaking jurists have grappled with parents alienating, brainwashing, kidnapping, and manipulating their children in thousands of cases.[2] Child psychiatrist Richard Gardner published his first formulation of a parental alienation syndrome (PAS) in 1985.[3]  A prolific advocate for children, Gardner wrote 41 books and more than 200 professional journal articles and book chapters.[4]   When the American Psychological Association published Guidelines for Child Custody Evaluations in Divorce Proceedings in 1994, Gardner was cited more than any other single authority in the “Pertinent Literature” section.[5]  In the recent text published by the American Bar Association—Children Held Hostage: Identifying Brainwashed Children, Presenting a Case, and Crafting Solutions—33% of the citations in the bibliography have “parental alienation,” “parental alienation syndrome,” or “alienation” in their titles; in the same bibliography, Richard Gardner’s work is cited twenty-three times.[6] Since Gardner’s numerous contributions, there have been hundreds of peer-reviewed articles, chapters in scholarly books, presentations at professional meetings, and legal treatises on PA.[7]

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

_________________________________________________________________

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

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

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

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

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

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

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

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

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

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

[11] See PA Database, supra note 7.

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

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.

Successful Expert Voir Dire Using the Three-Step Process

Posted on by Shawn Wygant

PsychLaw.net expounds the use of a three-step process to voir dire a proffered expert in proceedings involving PA. The following is taken from the 2014 Colorado custody case, D.T. v. N.O.  Although the court refused to enforce its evidentiary rules, a voir dire was conducted, which revealed the expert was unqualified and the proposed opinion was unreliable.

1.Test the proffered expert’s knowledge of relevant literature. 

In D.T. v. N.O., Father’s legal team began its voir dire by cross-examining the proffered expert’s knowledge of the data of the discipline by inquiring into the expert’s knowledge of the most well-known researchers and publications on the subject of PA, including:

(1)  the Family and Children’s Evaluation Team in Colorado and their published research examining 600 cases between 1975 and 1995[1]

(2)  the Family and Children’s Evaluation Team follow-up study published in the peer reviewed American Journal of Forensic Psychology describing additional information about the evaluation team’s PA findings[2]

(3)  the American Bar Association study, Children Held Hostage (1991)[3]

(4)  the recent revision of the classic Children Held Hostage (2013)[4]

(5)  the peer reviewed follow-up study child psychiatrist Richard Gardner conducted regarding his early work on the concept of PA[5]

(6)  the recent book, Parental Alienation: The Handbook for Mental Health and Legal Professionals (2013)[6], and

(7)  Dunne and Hedrick’s early work on PA published in the peer-reviewed Journal of Divorce and Remarriage.[7]

The expert, who was literally sitting in Colorado where some of this seminal research had been done, had no knowledge of any of these. Moreover, the expert was unable to support her opinion that PA was merely a concept designed to help abusive men take children away from protective mothers and the witness had no knowledge of texts written by women who had been victimized by fathers who manipulated children away from them, including:

(8)  books by Jill Egizii[8], Barbara Dircksen[9], Jennifer McBride[10], and television personality Pamela Richardson[11].

Similarly,

(9)  The expert could not defend her claim that judges did not support the concept of one parent alienating a child from another.

She also was unaware of

(10)  Judge Michelle Lowrance’s work-book with Leland Grove, Illinois, Alderman Jill Egizii[12]

(11)  Toxic Divorce: A Workbook for Alienated Parents by Canadian psychologist Kathleen Reay[13]

(12)  the first International Conference of Parental Alienation held in Frankfurt, Germany, in October 2002[14]

(13)  the 47th annual conference of the Association of Family and Conciliation Courts (held in Denver, Colorado), Traversing the Trail of Alienation[15]

(14)  the 500 U.S. and Canadian cases from 1985 through the date of the examination where PA was essential to the outcome[16]

(15)  the peer-reviewed research of scientist Joan Kelly on the scientific basis of the educational program called Family Bridges even though that was what the Father in the case was asking for.[17]

We at PsychLaw.net believe that this lack of knowledge should have been sufficient to disqualify this proposed expert.

  1. Reveal the proffered expert’s inadequacies from prior court appearances.

In D.T. v N.O., the father’s team then examined earlier court appearances that the expert had attempted, and how the expert was described in court opinions.  Before doing so, the cross-examiner elicited from the proffered expert that she had “maybe once” been excluded from a proceeding, but the witness dissembled that she couldn’t “recall.”  Then the witness identified two cases in which she described the reasons for her exclusion as unrelated to her qualifications or credibility[18]. She also directly testified: “Every other time … my methodology has been accepted.”[19] Voir dire revealed that this was not accurate.

On voir dire, Father’s team showed that the expert had been excluded in a Maryland case where the child had referred to the expert as “mommy’s friend,” and the court had found that the expert was actually a trigger for the child to make allegations. The Maryland court was also concerned that despite the fact that the expert relied solely on Mother and documents for her “research,” the expert opined that the child was abused and the father was the abuser.[20] Not only did this demonstrate bias, but this conduct also suggested violations of several other ethical principles and guidelines.[21]

When confronted with a New Jersey case in which expert was excluded[22], the expert said it was only because: (1) the tape recorder she used would turn off periodically and (2) the trial judge threatened to put her in jail if she gave thorough answers.[23] On voir dire it was revealed that the court entered “painstaking” findings that included that this expert had engaged in “a deliberate attempt to circumvent the scientific requirements” and was not an “open, neutral and objective” forensic psychologist.[24] During voir dire, the examining attorney inquired whether the expert’s opinion seemed to run afoul of ethical duties of accuracy and honesty in both cases.  Voir dire further inquired into whether the expert may also have violated the APA’s proscription against giving opinions in areas where the expert had insufficient information and knowledge.

Other cases by this expert were also brought up in o, which together established a pattern of providing opinions far beyond the scope of the information reviewed—which was precisely what the father’s team attempted to show in D.T. v. N.O.[25] Between the pattern of providing ill-informed opinions and the expert’s lack of candor in the present case, the expert should have been excluded.

3.Test the proffered expert’s knowledge of the facts of the present case.

The expert, who was supposed to be providing an opinion on the Family Bridges educational program for reconciling alienated children and their target parents, could not identify any foundation, treatise, peer-reviewed article, book chapter, or appellate report to support her opinion concerning the program.[26] This lack of knowledge of the precise program at issue rendered the expert’s opinion unhelpful, and should have been enough to exclude them.

_____________________________________________________________________

[1] Transcript of Hearing at 219-20, D.T. v. N.O., No. 10 CR 13 (Gunnison Co., Colo. Dist. Ct. Jan. 27, 2014) [hereinafter Tr. (1/27/14)]. Leona Kopetski, Identifying Cases of Parental Alienation Syndrome Part 1, 27 Colo. Law. (2) 65-68 (1998). Leona Kopetski, Identifying Cases of Parental Alienation Syndrome Part 2, 27 Colo. Law. (3) 61-64 (1998).

[2] Tr. (1/27/14), supra note 49, at 220. Deirdre Rand, Randy Rand & Leona Kopetski, The Spectrum of Parental Alienation Syndrome, 23 Am. J. of Forensic Psychol., no. 1, 2005, 15-43.

[3] Tr. (1/27/14), supra note 49, at 221, 229. Stanley S. Clawar & Brynne Rivlin, Children Held Hostage: Dealing with Programmed and Brainwashed Children (1991)

[4] Tr. (1/27/14), supra note 49, at 221. (After testifying “No, I am not” familiar with the 2013 revision, Silberg testified, “I would like to see it.”) Stanley S. Clawar & Brynne Rivlin, Children Held Hostage: Identifying Brainwashed Children, Presenting a Case, and Crafting Solutions (2d ed. 2013).

[5] Even though the proposed witness Dr. Joyanna Silberg testified to being unfamiliar with this publication, Silberg expressly testified that Gardner “never did any research.” Tr. (1/27/14) at 221-22. Gardner was a highly-regarded researcher, and his publications are numerous. See Richard A. Gardner, Should Courts Order PAS Children to Visit/Reside with the Alienated Parent? A Follow-Up Study, 19 Am. J. of Forensic Psychol., no. 3, 2001, 61-106. Dr. Gardner and his research in high-conflict cases was credited more than any other single author in the American Psychological Association, Guidelines for Child Custody Evaluations in Divorce Proceedings, 49 Am. Psychol. 677, 677-680 (1994). Gardner’s work on parental alienation was also cited more than any other single researcher in Clawar and Rivlin’s 2013 revision. Clawar & Rivlin, supra note 52.

[6] Tr. (1/27/14), supra note 49, at 222, 224.  Parental Alienation: The Handbook for Mental Health and Legal Professionals (Demosthenes Lorandos et al. eds., 2013).

[7] Tr. (1/27/14), supra note 49, at 229. John Dunne & Marsha Hedrick, The Parental Alienation Syndrome: An Analysis of Sixteen Selected Cases, 21 J. of Divorce and Remarriage 21-38 (1994)

[8] Tr. (1/27/14), supra note 49, at 233. Jill Egizii, The Look of Love (2010).

[9] Tr. (1/27/14), supra note 49, at 233-34. Barbara Dircksen, Parental Alienation is Abuse: One Mother’s Nightmare and Her Fight for Justice (2012).

[10] Tr. (1/27/14), supra note 49, at 234. Jennifer McBride, Childless Parent: “Snapshots” of Parental Alienation (2012).

[11] Tr. (1/27/14), supra note 49, at 234. Pamela Richardson, A Kidnapped Mind: A Mother’s Heartbreaking Memoir of Parental Alienation (2006).

[12] Tr. (1/27/14), supra note 49, at 234. Jill Egizii & Michele Lowrance, Parental Alienation 911 Work Book (2012).

[13] Tr. (1/27/14), supra note 49, at 235-36. Kathleen Reay, Toxic Divorce: A Handbook for Alienated Parents (2011).

[14] Tr. (1/27/14), supra note 49, at 236. Wilfrid von Boch-Galhau et al., The Parental Alienation Syndrome: An Interdisciplinary Challenge for Professionals Involved with Divorce (unpublished) (Frankfurt, Germany (Main) October 18-19, 2002).

[15] Traversing the Trail of Alienation: 47th Annual Conference, Denver, Colorado, Association of Family and Conciliation Courts http://www.afccnet.org/Portals/0/PublicDocuments/2010_january.pdf  (last visited Mar. 9, 2019).

[16] Tr. (1/27/14), supra note 49, at 247.

[17] Tr. (1/27/14), supra note 49, at 239. Joan B. Kelly, Commentary on “Family Bridges: Using insights from Social Science to Reconnect Parents and Alienated Children” (Warshak, 2010), 48 Fam. Ct. Rev. 81-90 (2010).

[18] Tr. (1/27/14), supra note 49, at 200-01.

[19] Transcript of Hearing at 34, D.T. v. N.O., No. 10 CR 13 (Gunnison Co., Colo. Dist. Ct. Jan. 28, 2014) [hereinafter Tr. (1/28/14)].

[20] Volodarsky v. Tarachanskaya, 916 A.2d 991, 997 (Md. 2007) (“Her disclosures to Ms. Dizard only came after [Silberg’s] name was introduced… whom Greta characterized as ‘mommy’s friend.’”). Note, too, that Dr. Silberg wrote in a book, that a psychologist or other mental health expert “cannot testify about people you have not met. . .” Joyanna L. Silberg, The Child Survivor: Healing Developmental Trauma and Dissociation 216 (New York, Routledge 2013). See also Ethical Principles & Standards, supra note 47, at 9.01. Specialty Guidelines, supra note 48, at 9.03.  Maryland Department of Health and Mental Hygiene Board of Examiners of Psychologists, Maryland Code of Ethics, Child Custody Evaluation 10.36.09.05(C) (2) [hereinafter COMAR Child Custody Evaluation Code] (identifying that psychologists should not “[r]ender an opinion concerning the psychological functioning or custodial fitness of a individual involved in the custody proceeding who has not been personally evaluated by the psychologist during the current child custody evaluation.”) (emphasis added).

[21] See Ethical Principles & Standards, supra note 47, at 9.01; Specialty Guidelines, supra note 48, at 9.03; COMAR Child Custody Evaluation Code, supra note 68.

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

[23] Tr. (1/28/14), supra note 67, at 34, 78-79.

[24] Id.  at 58, 63-64.

[25] Doe v. Roe, No. NNHFA094037658, 2012 WL 2899327 (Feb. 2, 2012); L.S. v. C.T., 2009 SD 2, 760 N.W.2d 145 (S.D. 2009).

[26] Tr. (1/27/14), supra note 49, at 198.

How to Qualify an Expert Using the Ethical and Professional Standards of their Discipline

Posted on by Shawn Wygant

In order to show the court what the proposed expert witness actually knows, what the proposed expert has actually done, and whether or not the testimony comports with ethical and professional standards of the discipline, PsychLaw.net analyzes the expert’s testimony in light of what standards may be warranted. This is certainly true with a proffered psychological opinion, particularly in high-conflict custody cases. The APA has ethical standards and specialty guidelines for forensic psychologists that form an excellent basis for examining the scientific foundation of a proffered opinion.  The relevant sections of the APA’s Ethical Principles of Psychologists and Code of Conduct are:

Principle C: Integrity: “Psychologists seek to promote accuracy, honesty, and truthfulness.”

Principle D: Justice: “Psychologists exercise reasonable judgment and take precautions to ensure that their potential biases, the boundaries of their competence, and the limitations of their expertise do not lead to or condone unjust practices.”

Standard 2.01(f): Boundaries of Competence: “When assuming forensic roles, psychologists are or become reasonably familiar with the judicial or administrative rules governing their roles.”

Standard 2.03: Maintaining Competence: “Psychologists undertake ongoing efforts to develop and maintain their competence.”

Standard 2.04: Bases for Scientific and Professional Judgments: “Psychologists’ work is based upon established scientific and professional knowledge of the discipline.”

Standard 3.04: Avoiding Harm: “Psychologists take reasonable steps to avoid harming their clients/patients … and others with whom they work, and to minimize harm where it is foreseeable and unavoidable.”

Standard 5.01: Avoidance of False or Deceptive Statements: “Psychologists do not make false, deceptive or fraudulent statements concerning … their training, experience, or competence, …  the scientific or clinical basis for, or results or degree of success of, their services.”

Standard 9.01: Bases of Assessments and Persons Not Examined: “Psychologists provide opinions of the psychological characteristics of individuals only after they have conducted an examination of the individuals adequate to support their statements and conclusions.” 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.”[1]

Also, the APA has published Specialty Guidelines for Forensic Psychology.  For the purposes of this chapter, the relevant sections of the Specialty Guidelines are:

Guideline 1.01 Integrity: “Forensic practitioners strive for accuracy, honesty, and truthfulness in the science, teaching, and practice of forensic psychology and they strive to resist partisan pressures to provide services in any ways that might tend to be misleading or inaccurate.”

Guideline 1.02 Impartiality and fairness: “Avoid partisan presentation of unrepresentative, incomplete, or inaccurate evidence that might mislead finders of fact.”

Guideline 2.02: Gaining and Maintaining Competence: “To maintain the requisite knowledge and skill, forensic practitioners keep abreast of developments in the fields of psychology and the law.”

Guideline 2.07 Considering the Impact of Personal Beliefs and Experience: “Biases may affect their ability to practice in a competent and impartial manner.”

Guideline 9.01 Use of Appropriate Methods: “Forensic practitioners strive to utilize appropriate methods and procedures in their work. When performing examinations, treatment, consultation, educational activities, or scholarly investigations, forensic practitioners seek to maintain integrity by examining the issue or problem at hand from all reasonable perspectives and seek information that will differentially test plausible rival hypotheses.”

Guideline 9.03 Opinions Regarding Persons Not Examined: “Forensic practitioners recognize their obligations to only provide written or oral evidence about the psychological characteristics of particular individuals when they have sufficient information or data to form an adequate foundation for those opinions. … Forensic practitioners [must] strive to make clear the impact of such limitations on the reliability and validity of their professional products, opinions, or testimony.”

Guideline 11.01 Accuracy, Fairness, and Avoidance of Deception in Public Statements: “Forensic practitioners do not, by either commission or omission, participate in misrepresentation of their evidence, nor do they participate in partisan attempts to avoid, deny, or subvert the presentation of evidence contrary to their own position.”

Guideline 11.05 Commenting Upon Other Professionals and Participants in Legal Proceedings: “In legal proceedings, forensic practitioners seek to represent their disagreements in a professional and respectful tone, and base them on a fair examination of the data, theories, standards, and opinions of the other expert party.”[2]

The codes, principles and guidelines in these two documents speak to many of the same concerns and overlap with respect to an expert’s knowledge of their data, integrity, cognizance of potential bias, and avoidance of fraud and deceit.  They should be used in tandem as psychologist experts must conform their behavior to all of these principles.

________________________________________________

[1] American Psychological Association, Ethical Principles of Psychologists and Code of Conduct, (Jan. 2017) [hereinafter Ethical Principles & Standards].

[2] American Psychological Association, Specialty Guidelines for Forensic Psychology, (Jan. 2013) [hereinafter Specialty Guidelines].

Posted on by Shawn Wygant

The Three Stages of The Daubert Trilogy

PsychLaw.net  frequently discusses the use of the Daubert trilogy. We want our readers to have a clear understanding of how to apply the Daubert trilogy when cross examining experts. It is important in both the fields of science and law to have valid, relevant science discussed and applied to our cases. To understand better, the application of the Daubert trilogy can be broken down into three distinct stages.

Stage One – Background and Experience

The fact that an expert possesses a particular title or degree, while relevant, is not dispositive in qualifying the expert. Rather, there must be further inquiry as to whether the actual qualifications of the expert enable him or her to assist the trier of fact with regard to one or more controverted issue. For example, while a pediatrician may be qualified to provide medical diagnoses, generally, they may not necessarily have the expertise to provide an opinion as to whether a child has attention-deficit/hyperactivity disorder.

Stage Two – Application to Facts of Case

The cross-examiner must explore whether the proffered expert has an opinion that offers a reliable application to the facts of the case. This is determined in a two-tier fashion by applying the evidentiary rules FRE 702 and FRE 703.

The first hurdle of the second level of fit, endorsed by the Daubert court, is to determine if the opinion is helpful and “properly can be applied to the facts in issue.”[1] As the Advisory Committee for the FRE and several federal circuits have explained, this helpfulness concept is the “touchstone” of Rule 702.[2]

The second hurdle for this second level of fit, FRE 703’s “reasonable reliance,” allows that an expert opinion need not necessarily be based upon admissible evidence. It is sufficient for an expert’s opinion to rest on data “reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”[3]

This fit does not need to be exact[4]. It is sufficient for the expert’s orientation, background, and methodology to fit the facts with reasonable scientific specificity and go beyond subjective belief or unsupported speculation.[5] In assessing the admissibility of expert testimony, the primary focus of courts is that the testimony fit the facts. When it does, it assists the trier of fact “to understand the evidence or to determine a fact in issue.”[6]

According to the Federal Rule Advisory Committee, the goal is to allow experts to function essentially the same way in court as they do out of court, which produces more realistic and useful expert testimony. The Advisory Committee reasoned that as physicians base their diagnoses on hearsay and other inadmissible facts (e.g., statements from other medical personnel, patients, relatives, hospital records, objective tests, etc.), it should be a good enough basis for an expert’s opinion at trial.[7]

Therefore, expert testimony may be derived from any one of the following three sources:

  1. The expert’s first-hand knowledge of the facts acquired before the hearing.
  2. Facts and data made known to the expert at the hearing.
  3. Facts and data obtained outside of court other than from personal observation.

This approach allows an expert to base their opinion on facts or data perceived by or made known to the expert before the hearing and is more expansive than under common law. However, this interpretation does not allow an expert to base their opinion on assumptions and data that are so contrary to the evidence in the record or on assumptions that are so untethered to the actual facts, that they amount to conjecture and speculation.[8] Consequently, a judge’s determination as to whether an expert is truly qualified for the circumstances of the particular case must take into account the fact that their opinion may be based on untrustworthy underpinnings.[9]

Stage Three – Scientific Methodology

The Court’s guidance in Daubert, later refined in 1999 in Kumho, regarding scientific or professional expertise is that the opinion must be grounded in the “same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”[10] Thus, while a scientist must ground his opinion in the reasoning and methodology of science,[11] a professional from a less scientific discipline may still qualify as an expert from their “professional studies or personal experience” in that field.[12]

Courts are encouraged to consider the non-exclusive list of factors set out in Daubert in making this determination, including: (1) Can the theory or technique be tested? (2) Has the theory or technique been subjected to peer review and publication? and (3) What is the known or potential rate of error?[13] However, these are not “definitive” and may not necessarily apply to exclude a witness.[14] Ultimately, it is within the trial court’s discretion to decide which factors to consider and which to ignore.

Nonetheless, a failure of this third level of fit should exclude an expert, even if the expert’s background and knowledge of the discipline fit and was well oriented to the issues in controversy. Again, it is through voir dire that this inquiry is best conducted.

__________________________________________________________________________

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

[2] See, e.g., Fed. R. Evid. 702 advisory committee’s note to 2000 amendment. Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993).

[3] The reform accomplished by the second sentence of FRE 703 has two practical effects. First, it reduces the need for firsthand knowledge on the part of experts. Second, the fact that an expert may testify without firsthand knowledge, when coupled with the principle that the underlying basis need not be set out before opinion testimony is given, substantially reduces the need for hypothetical questions. According to the Advisory Committee, the focus of the reasonable reliance standard is the quality and sufficiency of outside information and the manner of, and reasons for, its use. This is the model in the case law prior to the federal Advisory Rule December 2000 change. This occasion of the “reasonable reliance” analysis is now located in FRE 702. However, many states still locate this analysis of reliance in 703. The reader must verify for the reader’s state practice.

[4] There are numerous examples of cases wherein the courts have found experts with sufficient case-specific expertise. See, e.g., Enercomp, Inc. v. McCorhill Pub., Inc., 873 F.2d 536, 550 (2d Cir. 1989) (where a senior associate in corporate finance was found qualified to testify on value of defendant’s assets in light of experience in field of mergers and acquisitions); Dunn v. HOVIC, 1 F.3d 1362, 1368 (3d Cir. 1993), modified on other grounds, 13 F.3d 58 (3d Cir. 1993) (allowing an occupational medicine practitioner to testify as expert on asbestos in light of experience with other employers and his review of defendant’s corporate records); Myers v. Griffin-Alexander Drilling Co., 910 F.2d 1252, 1254 (5th Cir. 1990) (holding an expert in hyperbaric medicine was qualified to testify on the effects of nitrogen on plaintiff); U.S. v. Metzger, 778 F.2d 1195, 1203–1204 (6th Cir. 1985) (admitting testimony of a witness who conducted thin-layer chromatography to test for presence of chemical, and who had attended numerous courses and seminars dealing with explosives), cert. denied 477 U.S. 906 (1986); Williams v. Pro-Tec, Inc., 908 F.2d 345, 348 (8th Cir. 1990) (in a pre-Daubert case, a mechanical engineer’s self-acknowledged lack of medical expertise went to the ‘‘weight’’ of his opinion about an eye injury rather than to the admissibility of his opinion); Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991) (finding a mechanical engineer with special expertise in safety design of mechanical equipment was qualified as expert in products liability action); U.S. v. Hensel, 711 F.2d 1000, 1006 (11th Cir. 1983) (allowing a fire inspector was allowed to testify about the origins of a fire aboard a ship despite his alleged shortcomings in admiralty area).

[5] Daubert, 509 U.S. at 589-90; DaSilva v. American Brands, Inc., 845 F.2d 356, 360–36 (1st Cir. 1988) (in a pre-Daubert case, the appellate court rejected a defendant’s view that a mechanical engineer with 23 years of experience with machine design was not qualified as an expert because his design experience was not with the ‘‘specific machine’’ in question); Schmaltz., 878 F. Supp. at 1121 (where the court noted that the suggested scientific testimony must ‘‘fit’’ the issue about which the expert is testifying); Paoli, 35 F.3d at 742; Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81–82 (2d Cir. 1997) (where the district court erred in concluding that well-trained person who lacked specific expertise in airport terminal design or baggage claim systems was insufficiently qualified to testify); Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777, 781–783 (3d Cir. 1996) (determining that it was an abuse of discretion to exclude an expert’s testimony simply because the trial court did not deem witness to be the best qualified or to have the specialization that the court considered most appropriate. The appellate panel granted a new trial because the trial court disallowed the treating doctor’s testimony about decedent’s cancer because he was not a pathologist, oncologist, or expert in ‘‘definitive cancer diagnosis’’); Garrett v. Desa Industries, Inc., 705 F.2d 721, 725 (4th Cir. 1983) (allowing a mechanical engineer to testify on problems with stud drivers because of his education even though he has no specific experience with stud drivers); Weese v. Schukman, 98 F.3d 542, 549–550 (10th Cir. 1996) (allowing a physician to testify as an expert witness, even though he had no experience in treatment for carbon monoxide poisoning, because physician was qualified to testify about another method of treatment for carbon monoxide poisoning that he believed met standard of care).

[6] Remember, the court can always reach out to find another expert. See, e.g., Stagl, 117 F.3d at 81-82 (noting a court may consider the availability of other more qualified experts in deciding to exclude testimony on the grounds that the proposed expert is not sufficiently knowledgeable in the area).

 

[7] Fed. R. Evid. 703 advisory committee’s note to 1972 proposed rules. This is the model in the case law prior to the federal Advisory Rule December 2000 change. This occasion of the “reasonable reliance” analysis is now located in FRE 702. However, many states still locate this analysis of reliance in 703. The reader must verify for the reader’s state practice.

[8] In subsequent sections, the author provides illustrative cases where speculative, unreliable expert testimony was proffered and rejected.

[9] Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd., 505 F. Supp. 1313, 1325 (E.D. Pa. 1980), aff’d in part, rev’d in part, 723 F.2d 238 (3d Cir. 1983) (holding that the court must determine whether facts or data is of the type reasonably relied upon by experts in their respective fields), cert. granted in part, 471 U.S. 1002 (1985) rev’d on other grounds, 475 U.S. 574 (1986). See also Shatkin v. McDonnell Douglas Corp., 565 F. Supp. 93 (S.D.N.Y. 1983).

[10] Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993) (‘‘the ‘‘focus.. . .must be solely on principles and methodology.’’).

[11] Daubert, 509 U.S. at 595.

[12] Kumho, 526 U.S. at 152.

[13] Daubert, 509 U.S. at 593-94.

[14] Kumho, 526 U.S. at 151.

How to Use Voir Dire in Family Law Cases

Posted on by Shawn Wygant

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted on by Shawn Wygant

When Voir Dire Goes Wrong

As we know at  PsychLaw.net, many times whether from impatience or ignorance, trial judges cut off voir dire before a complete and thorough examination is conducted, often leading to the admission of unreliable, prejudicial evidence. In one such case, State v. Vidrine, the Louisiana Court of Appeal vacated and remanded a conviction of sexual battery of a juvenile after a trial court refused to allow the defendant to conduct a hearing to examine the reliability of an expert’s proposed opinion.

In Vidrine, the court had allowed the expert to be examined during a pre-trial hearing, but only as to her qualifications.  In finding the court had committed an abuse of discretion, the Louisiana appellate court noted the expert had testified as to “her background, training, and professional experience … [and] the nature of her testimony as an expert in previous cases,” but “did not state what methodology or reasoning she applied.” The Court of Appeals reversed the conviction. 

The reverse scenario occurs when the court inappropriately excludes expert testimony.  For example, in Harris v. State, while holding the Mississippi trial court’s decision to exclude defendant’s expert was ultimately harmless error, the Court of Appeals found:  

  Dr. Merrell testified he had three years of experience as an emergency-room physician and had treated between two hundred and three hundred patients. Additionally, Dr. Merrell testified that he was familiar with the common side effects of cocaine, benzodiazepines, and marijuana. Based on his medical training and experience, Dr. Merrell was qualified to testify regarding the common side effects of the drugs found in [the victim’s] system.

  Likewise, in U.S. v. Belyea, a trial judge’s rejection of an expert on false confessions with the simple conclusion that “jurors know people lie” and that a confession may be false was “something juries decide all the time, and I don’t need an expert to help them in that respect,” was reversed as the appellate court held the “approach is erroneous as a matter of law because it overlooks Daubert’s general requirement for a particularized determination in each case.” The appellate court continued:  

It appears to us that the expert in this case … would have addressed whether and how these particular factors correlate to false confessions. Belyea’s motion in limine states that [the expert] would testify that false confessions in fact occur, and that various techniques used by law enforcement agents, such as false accusations and false promises can influence a person’s decision to confess falsely…[and] that particular characteristics of the person interrogated, such as … anxiety problems, can affect the likelihood that a confession is false.

 Apparently no voir dire was conducted in the Oregon case, State v. Olsen. In Olsen, the trial court denied a defendant’s pre-trial motion to exclude the expert’s diagnosis, and allowed a physician who examined the alleged child victim to testify about his diagnosis of sexual abuse, which was “predicated [only] on what complainant’s mother told him as well as complainant’s statements during the interview.” The Court of Appeals reversed and remanded the case due to the lack of physical findings to corroborate the diagnosis. 

 

Competence: A requirement in practice

Posted on by Shawn Wygant

Relevant Ethical Codes  

At PsychLaw.net we emphasize that the National Association of Social Workers clearly prohibits social workers from practicing outside their area of competence.  In particular, Standard 1.04 (a), addressing “Competence,” states: 

“Social workers should provide services and represent themselves as competent only within the boundaries of their education, training, license, certification, consultation received, supervised experience, or other relevant professional experience.”

 Similarly, the Code of Ethics of the American Association for Marriage and Family Therapy prohibits marriage and family therapists from practicing outside their area of competence.  In particular, Standard 3.6, addressing  “Professional Competence and Integrity,” states: 

“Marriage and family therapists do not diagnose, treat, or advise on problems outside the recognized boundaries of their competence.”

 Relatedly, the “Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry” clearly prohibit psychiatrists from practicing outside their area of competence.  In particular, Section 2.3 of these principles state: 

“A psychiatrist who regularly practices outside his/her area of professional competence should be considered unethical. Determination of professional competence should be made by peer review boards or other appropriate bodies.”

 Cross Examining Non Psychologists Regarding Psychological Testing 

  1. Your profession’s ethical code clearly prohibits you from practicing outside your area of competence  Correct? 
  2. Your license [or certification] in this state does not define psychological testing as falling within your scope of practice  Correct? 
  3. And we have already established that you are not familiar with many fundamental concepts related to psychological testing  Correct? (referring to the cross examination questions found in Section B of this chapter). 
  4. Therefore, you are obligated to acknowledge that your reliance on psychological tests in this case amounts to your practicing outside your area of competence  Correct? 

  Examiner Influences 

At PsychLaw.net we emphasize that unlike most diagnostic procedures in medicine, the results of psychological testing can be substantially influenced by the psychologist who obtains them.  This is particularly so for the “subjective” psychological tests discussed in the next chapter, but it can apply to “objective” measures as well. For example, the expectations of psychologists can alter how they administer and score intelligence tests.iv  Examiners who think they are testing intellectually bright subjects assign them higher IQ scores in contrast to subjects they think are dull.v  Performance on the Rorschach technique varies considerably according to whether patients take it from their own therapist or another psychologist.vi    At PsychLaw.net we note that this research indicates that the data obtained from most psychological tests might be quite different if another psychologist did the testing. More about the Rorschach in Other posts. 

 Cross Examination Regarding Examiner Influences 

  1. The results of psychological tests can be influenced by the examiners who administer them  Correct? 
  2. Would it surprise you to know that examiners who mistakenly think they are testing intellectually bright subjects assign them artificially high IQ scores? 
  3. And would it surprise you to know that examiners who mistakenly think they are testing dull subjects assign them artificially low IQ scores?
  4. And results on the Rorschach test can be influenced by who administers the test  Correct? 
  5. Therefore, if another psychologist did the psychological testing in this case, the obtained scores could be different  Correct? 

Cross Examination of Projective Techniques

Posted on by Shawn Wygant

Overview of Projective Techniques

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

Subjectivity of Projective Techniques

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

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

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

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

Cross‑Examining the Subjective Nature of Projective Techniques

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

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

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

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

[2].       Faigman, D.L. (1995). The evidentiary status of social science under Daubert: Is it “scientific”, “technical”, or “other” knowledge? Psychology, Public Policy, and Law, 1, 960-979. [ For the most part, psychologists who maintain rigorous scientific standards such as those described in the current edition of the APA’s Standards for Educational and Psychological Testing (1985) will find the effect of the Daubert standard to be more liberal than the old Frye standard.  But psychologists wyho cannot justify the validity & reliability of their measures, will find the Daubert standard far more severe].  See, also: Faigman, D.L. (1992). Struggling to stop the flood of unreliable expert testimony. 76 Minnesota Law Review 877-889; Faigman, D.L., Porter, E. & Saks, M. (1994). Check your crystal ball at the courthouse door please: Exploring the past, understanding the present and worrying about the future of scientific evidence. 15 Cardozo Law Review 1799-1835.

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

Posted on by Shawn Wygant

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

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

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

FRE 702:

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

FRE 703:

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

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

____________________________________________________________________________

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mood-Congruent Memory Effect

Posted on by Shawn Wygant

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

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

Cross‑Examining the Mood‑Congruent Memory Effect

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

– [ read ] –

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

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

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

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

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

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

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

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

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

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

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

Negligent & Intentional Infliction of Psychological Injuries in Medical Practice

Posted on by Shawn Wygant

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

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

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

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

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

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

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

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

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

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

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

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

_______________________________________________________________________________

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

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

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

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

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

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

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

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

[8]  961 P.2d 761 (Nev. 1998).

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

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

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

[12]  453 NW2d 634 (Iowa, 1990).

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

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

[15]  237 F.3d 1223 (10th Cir. 2001).

Child Custody Evaluations and Appropriate Standards of Psychological Practice

Posted on by Shawn Wygant

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

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

Divorce and Changing Family Dynamics– Assessment Issues

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

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

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

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

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

Cross‑Examination Regarding Divorce and Changing Circumstances

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

_____________________________________________________________________________

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

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

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

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

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

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

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

Research v. Clinical Judgment

Posted on by Shawn Wygant

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

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

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

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

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

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

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

_____________________________________________________________________________________________________________________________

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

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

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

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

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

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

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

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

[9] Id.

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

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

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

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

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

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

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

Who Qualifies as An Expert?

Posted on by Shawn Wygant

Federal Rule of Evidence 702 states:

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

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

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

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

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

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

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

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

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

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

 Treating Therapist vs. Expert Witness

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

 Therapeutic Alliance vs. Objectivity

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

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

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

_________________________________________________________________________________________—

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

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

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

See also:

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

See also:

Vidmar, N.J. & Schuller, R. A. (1989). Juries and Expert Evidence: Social Framework Testimony, LAW & CONTEMP. PROBS., Autumn, at 133, 166 And see: e.g., Commonwealth v. Garcia, 588 A.2d 951, 955 (Pa. Super. Ct. 1991), appeal denied, 604 A.2d 248 (Pa. 1992) (“Jurors are human and may be unduly impressed by an expert, his credentials, and ultimately his opinion, >even though, upon reflection, they would realize that in the particular field under discussion they are as much at home as the expert.’@).

[3].       Strong, John W. (1992). Language and Logic in Expert Testimony Limiting Expert Testimony by Restrictions of Function, Reliability, and Form, 71 OR. L. Rev. 349, 361.

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

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

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

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

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

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

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

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

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

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

Gatekeeping with the Behavioral Sciences

Posted on by Shawn Wygant

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“..the trial judge must determine at the outset, pursuant to Rule 104 (a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.  This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. 509 U S 579, 113 S Ct at 2796.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Key Kumho Tire Concepts

Posted on by Shawn Wygant

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

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

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

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

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

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

Key Kumho Tire Concepts:

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

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

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

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

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

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

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

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

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

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

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

[5]  Id. at pg 656.

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

 

Evidentiary Reliability and Validity

Posted on by Shawn Wygant

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

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

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

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

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

Shielding the Jury from Prejudicial “Junk Science”

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

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

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

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

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

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

 The Problem of Creeping Hearsay.

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

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

_________________________________________________________________________________________________________________

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

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

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

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

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

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

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

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

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

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

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

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

[10].     McCormick, et al., (1995) Evidence § 203, at 876. See, also:  Strong, J. W. (1992). Language and Logic in Expert Testimony Limiting Expert Testimony by Restrictions of Function, Reliability, and Form, 71 OR. L. Rev. 349, 361; and see: Vidmar, N.J.  & Schuller, R.A. (1989).  Juries and Expert Evidence: Social Framework Testimony, LAW & CONTEMP. PROBS., Autumn 1989, at 133, 166 (footnote omitted); also see e.g., Commonwealth v. Garcia, 588 A.2d 951, 955 (Pa. Super. Ct. 1991), appeal denied, 604 A.2d 248 (Pa. 1992) Instructing that “Jurors are human and may be unduly impressed by an expert, his credentials, and ultimately his opinion, ‘even though, upon reflection, they would realize that in the particular field under discussion they are as much at home as the expert.’”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Importance of Voir Dire

Posted on by Shawn Wygant

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

“…in order to qualify as ‘scientific knowledge’, an inference or assertion must        be derived by the scientific method.  Proposed testimony must be supported by appropriate validation – i.e., ‘good grounds,’ based on what is known.” Id.113 S Ct at 2795; 125 L Ed 2d at 481.

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

“…the trial judge must determine at the outset, pursuant to Rule 104 (a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will   assist the trier of fact to understand or determine a fact in issue.  This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Id. 509 U S 579, 113 S Ct at 2796; 125 L Ed 2d at 482 emphasis added

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

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

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

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

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

Credentials.

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

                   Conflicts of Interest.

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

 

Employment Beyond Competency.

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

                   Improper Attorney Influence.

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

                   Contingent Fee.

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

                   Creating Conclusions Before Research.

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

                   Investigation not done.

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

                   Intentionally Ignoring Data.

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

                   Use of False Data.

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

___________________________________________________________________________________________________________________________

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

[2].       See, also: Faigman, D. L; Porter, E. & Saks, M. J. (1994). Check your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying About the Future of Scientific Evidence, 15 Cardozo L. Rev. 1799:

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

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

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

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

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