Tag: Psychotherapy

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.

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? 

What’s in a Name: Defining Parental Alienation

Posted on by Shawn Wygant

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

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

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

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

 Since the 1980s, many mental health and legal professionals in the U.S. and other countries have identified, described, discussed, and named the condition that we are calling “parental alienation.”  The proliferation of names has led to confusion and, at times, disagreement among professional colleagues.Here are some examples in chronological order. 

 Janet Johnston and her colleagues (Johnston, Campbell, & Mayes, 1985) reported the “distress and symptomatic behavior of 44 children … who were the subject of post-separation and divorce disputes over their custody and care.”  The authors described six primary responses of these children to their parents: “strong alliance,” “alignment,” “loyalty conflict,” “shifting allegiances,” “acceptance of both” with “avoidance of preferences,” and “rejection of both.”  Their definition of “strong alliance” was “a strong, consistent, overt (publicly stated) verbal and behavioral preference for one parent together with rejection and denigration of the other.  It is accompanied by affect that is clearly hostile, negative and unambivalent.”  They wrote, “The child consistently denigrated and rejected the other parent.  Often, this was accompanied by an adamant refusal to visit, communicate, or have anything to do with the rejected parent.”  

Child psychiatrist Richard Gardner (1985) introduced the concept of “parental alienation syndrome” (PAS): 

[Parental alienation syndrome refers] to a disturbance in which children are obsessed with deprecation and criticism of a parent – denigration that is unjustified and/or exaggerated. … The concept of the parental alienation syndrome includes the brainwashing component but is much more inclusive.  It includes not only conscious but subconscious and unconscious factors within the parent that contribute to the child’s alienation.  Furthermore (and this is extremely important), it includes factors that arise within the child – independent of the parental contributions – that contribute to the development of the syndrome. 

 Although Gardner never named the condition after himself, PAS has been called “Zespół Gardnera” or “Gardner Syndrome” in Poland. 

Wallerstein and Blakeslee (1989) ome,” referring to the Greek myth in which Medea avenged the betrayal of her husband, Jason, by killing their two children. 

 Stanley Clawar, a sociologist, and Brynne Rivlin, a social worker (1991), published their monumental study, which had been commissioned by the American Bar Association.  They used the terms “programming” and “brasuggested that some mothers could be “entangled with Medea-like rage.”  Thus, the “Medea syndrinwashing” to describe the attitudes and behavior that causes PA.  They said:  

 [One parent may] hinder the relationship of the child with the other parent due to jealousy, or draw the child closer to the communicating parent due to loneliness or a desire to obtain an ally.  These techniques may also be employed to control or distort information the child provides to a lawyer, judge, conciliator, relatives, friends, or others, as in abuse cases. (p. 15) 

 Wallerstein, Kelly, Blakeslee, Johnston, Gardner, Clawar, and Rivlin were writing about the same children and the same clinical phenomenon.  When Johnston wrote about the impact of polarizing parents in high conflict cases, she noted that “strong alignments are probably most closely related to the behavioral phenomena Gardner referred to as parental alienation syndrome” (1993).  Kelly and Johnston (2001) subsequently renamed the condition “the alienated child” to focus clinical attention on the child rather than on the activities of the parents.In 1994, Ira Turkat argued that custodial parents engage in a variety of direct and indirect behaviors designed to alienate children from the nonresidential parent. Turkat argued that the result was that the children became preoccupied with unjustified criticism and hatred of the nonresidential parent (Turkat, 1994).  He called the process “malicious parent syndrome” (Turkat, 1999). Warshak (2006) defined “pathological alienation” as:  

 a disturbance in which children, usually in the context of sharing a parent’s negative attitudes, suffer unreasonable aversion to a person or persons with whom they formerly enjoyed normal relations or with whom they would normally develop affectionate relations (p. 361).

 

For a list of references click here. 

 

 

 

Cross Examination of Projective Techniques

Posted on by Shawn Wygant

Overview of Projective Techniques

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

Subjectivity of Projective Techniques

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

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

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

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

Cross‑Examining the Subjective Nature of Projective Techniques

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

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

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

__________________________________________________________________________________________________________________________

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

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

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.

Evidentiary Rules and Motion Practice

Posted on by Shawn Wygant

At PsychLaw.net we know it is a matter of common knowledge that scientific expert testimony is offered in a very high percentage of American trials.[1]  The testimony of mental health professionals was first reviewed by the United States Supreme Court in 1908 in Muller v. Oregon, 208 U.S. 412 (1908).  Muller was a landmark case dealing with social welfare legislation designed to limit the work day of women. These women typically labored in a factory or laundry up to ten hours. In this case, attorney Louis Brandeis accumulated a substantial body of medical and social science research demonstrating the debilitating effect on women and girls of working long hours.  Brandeis presented this material to the United States Supreme Court in a brief defending Oregon’s limits on the number of hours females could be employed.  As the Supreme Court upheld the constitutionality of the legislation, it discussed Brandeis’ social science material.  The Court declared that although they “may not be, technically speaking, ‘authorities’, the studies would nonetheless receive judicial cognizance.”  Since that time, motions and briefs designed to bring the weight of social science research to the attention of the court have been termed “Brandeis briefs”.

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Foundational Questions Regarding Peer-reviewed Journals

Posted on by Shawn Wygant

This blog relies extensively on the data and articles found in the peer-reviewed literature for cross-examining mental health professionals.  Consequently, at PsychLaw.net we feel it will be necessary for cross-examining attorneys to lay a foundation regarding the significance of peer-reviewed journals.  We recommend the following questions for foundational purposes.

  1. Dr. X, you would agree that the practice of your profession can advance no further than the availability of the basic research to support it — Correct?
  2. Just as the practice of medicine depends on basic research in the life sciences such as Biology and Chemistry, the practice of your profession depends on basic research in the behavioral sciences such as Psychology and Sociology — Correct?
  3. And practicing professionals such as yourself are ethically obligated to maintain a working familiarity with the emerging research in your field — Correct?
  4. [For psychologists] – Ethical standard 1.05 of the 1992 ethical code for psychologists – “Maintaining Expertise”[1] – states:

– [read] –

“Psychologists who engage in assessment, therapy, teaching, research, organizational consulting, or other professional activities maintain a reasonable level of awareness of current scientific and professional information in their fields of activity, and undertake ongoing efforts to maintain competence  in the skills they use.”

Now my question: You are obligated to comply with this provision– Correct?

  1. [For psychiatrists] – Section Five of the AMA Principles of Medical Ethics with annotations especially applicable to psychiatry, state:

– [ read ] –

“A physician shall continue to study, apply, and advance scientific knowledge, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals when indicated.”

Now my question: You are obligated to comply with this provision– Correct?

AND

– [read] –

Provision One of Section Five: “Psychiatrists are responsible for their own continuing education and should be mindful of the fact that theirs must be a lifetime of learning.”

Now my question: You are obligated to comply with this provision– Correct?

  1. [For social workers] – Ethical standards 4.01 (b) and 4.01 (c) of the 1997 ethical code for social workers – “Competence”[2] – state:

– [read] –

4.01 (b) – “Social workers should strive to become and remain proficient in professional practice and the performance of professional functions.  Social workers should critically examine and keep current with emerging knowledge relevant to social work.  Social workers should routinely review the professional literature and participate in continuing education relevant to social work practice and social work ethics.”

Now my question: You are obligated to comply with this provision– Correct?

AND

– [read] –

4.01 (c) – “Social workers should base practice on recognized knowledge, including empirically based knowledge, relevant to social work and social work ethics.”

Now my question: You are obligated to comply with this provision– Correct?

  1. [For marriage and family therapists] – Ethical standard 3.4 of the 1998 ethical code for marriage and family therapists –

“Professional Competence and Integrity”[3] – states:

– [read] –

“Marriage and family therapists remain abreast of new developments in family therapy knowledge and practice through educational activities.”

Now my question: You are obligated to comply with this provision– Correct?

  1. Familiarity with peer reviewed journals can assist a professional in maintaining a reasonable level of awareness of current scientific and professional information — Correct?
  2. A peer-reviewed journal relies on a board of editors to review articles submitted to it for publication — Correct?
  3. And articles submitted to a peer-reviewed journal are reviewed independently by at least three different editors — Correct?
  4. And typically, editors reviewing the submitted article do not know who wrote it — Correct?
  5. After reviewing the submitted article, each editor makes recommendations such as: publish as is — Correct?
  6. Or publish with minor revisions — Correct?
  7. Or publish with major revisions — Correct?
  8. Or not currently suitable for publication — Correct?
  9. And sometimes, resubmit with major changes and reorganization — Correct?
  10. And sometimes editors conclude this article is not – and will not be – suitable for publication — Correct?
  11. Peer-review, therefore, amounts to a valuable source of quality control regarding what is published in scientific journals — Correct?
  12. The peer-review process encourages the publication of articles that make a significant contribution to your field — Correct?
  13. And the peer-review process discourages the publication of articles amounting to “junk science” — Correct?
  14. And authors of controversial articles, published in peer-reviewed journals, are ethically obligated to cite other articles taking a contrary position — Correct?
  15. In other words, peer-reviewed articles are obligated to present a fair and complete review of the existing literature — Correct?
  16. Articles published in peer-reviewed journals can therefore be considered generally recognized and accepted by your field — Correct?
  17. And sometimes authors whose work appears in the peer reviewed journals, write chapters or books on the same subject — Correct?
  18. And when these subjects, by these authors find their way into chapters and books, they can therefore be considered generally accepted by your field — Correct?

Because they are not as familiar with peer-reviewed journals as they should be, mental health professionals may attempt to diminish their importance. At ___ we feel you should consider, for example, the following exchange between a cross-examining attorney and a psychologist.

Attny:         Would you agree with the idea that your profession can advance no further than the availability of basic research to support it?

Psych:         I believe that my profession advances on the basis of basic research, but also advances on the shared community experience of skilled clinicians that come together to educate each other and to share their experiences and any relevant clinical information.

Claims such as these should be cross-examined in the following manner.

  1. These “skilled clinicians who come together to educate each other” typically know each other — Correct?
  2. And unlike the peer-review process of a journal, any criticisms expressed by these skilled clinicians – who come together to educate each other – are expressed on a face-to-face basis — Correct?
  3. And considerations of future professional relationships could make it more difficult for these “skilled clinicians” to respond candidly and forthrightly to each other — Correct?
  4. In other words, these “skilled clinicians” – coming together to educate each other and to share their experiences – may merely amount to you and your buddies talking about interesting cases over beer and pizza — Correct?
  5. And there are substantial differences between formal peer-review, and you and your buddies discussing interesting cases over beer and pizza — Correct?

At PsychLaw.net we know that some professionals may also attempt to avoid acknowledging that peer-reviewed articles can be considered generally recognized and accepted by their field.  Consider the following exchange, for example; and most importantly, note how the cross-examining attorney persisted in obtaining the acknowledgment he sought.

Attny:         Do you agree that peer-reviewed articles can be considered generally recognized and accepted in the field once they go through that process? [referring to the peer-review process].

Psych:         Recognized and accepted how?

Attny:         As a reliable authority by practitioners or psychologists?

Psych:         Recognized and accepted as good enough to be published in a journal.

Attny:         To be relied on by professionals?

Psych:         Not necessarily.

Attny:         What I am getting at is if you see something that has been peer-reviewed, A – is it more likely acceptable material to the mainstream of psychologists, or B – is it more likely radical thesis type material on the fringe; which is a more plausible answer to that?

Psych:         A is a more plausible answer to that.

 

Mental health professionals typically protest cross-examinations that challenge their too often ill-informed opinions.  While protesting, they may offer anecdotal evidence or idiosyncratic experiences attempting to defend themselves.  More often than not, these attempts are less than responsive to the questions directed at them.  In particular, mental health professionals often attempt to deny, minimize, or rationalize the findings reported in peer-reviewed journals.  At PsychLaw.net we feel their attempts in this regard warrant the following sequence of questions to maintain control of the cross examination:

  1. You understand that I am not interested in your unsubstantiated opinions — Correct?
  2. Consistent with your ethical obligation to maintain familiarity with developments in your field, I want to know what peer-reviewed articles support your opinions — Correct?
  3. And you do understand the difference between unsubstantiated opinion and peer-reviewed articles — Correct?

By now, you have noticed how most of our cross-examination questions end with the direct phrase, “Correct?”  We at PsychLaw.net have developed the questions in this manner to assist attorneys in maintaining control of the cross-examination procedure.  If given the opportunity, many mental health professionals will suggest why they regard various cross-examination questions as inappropriate.  Other mental health professionals may protest an approach that limits their answers.  Consider, for example, how a psychologist objected to this type of cross-examination:

Psych:         “You’re asking me about something that you have read and that I’m getting from you which is your, you know, synopsis of it.  I haven’t read it, and you’re asking me ‘Correct, correct.’ All I can say is this is what you’re telling me but I cannot tell you specifically anything about the article because I myself haven’t read it.”

Professionals who express these kinds of protests can be questioned in the following manner:

  1. You previously acknowledged the significance of peer-reviewed journals — Correct?
  2. Do you understand that when I refer to peer-reviewed articles, I will ask you to assume – consistent with a peer-reviewed article – that something is true. Do you understand that kind of question?
  3. In other words, do you understand that when I refer to peer-reviewed articles in your field, I am asking you to hypothetically assume that something is true?
  4. And when I end my questions by asking “Correct,” do you understand that I am trying to focus you on the issue on at hand?
  5. You prefer to respond to my questions in a focused, relevant manner as opposed to an unfocused, irrelevant manner — Correct?

 Overview

Unlike other critics of mental health professionals, we at PsychLaw.net contend that these professionals can assist the legal process. When mental health professionals express opinions well supported by relevant data, they can assist a trier of fact to better understand issues in dispute.  Expert testimony premised on relevant research deserves respect from the legal system.   Expert testimony premised on intuitive hunches and ill-conceived theories, however, deserves well prepared cross examination to effectively discredit it.

 

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

[2].       National Association of Social Workers (15 August 1996). Code of ethics: Adopted by the NASW Delegate Assembly August 15, 1996, Effective January 1, 1997.  Author: Washington, D.C.

[3].       American Association for Marriage and Family Therapy (August/September 1998).  AAMFT Code of Ethics, effective July 1, 1998. , p. 10-11.

Dealing with Mental Health Experts

Posted on by Shawn Wygant

It is the authors’ intent to use the current research in the behavioral sciences and law, to aid the practitioner. At PsychLaw.net we hope this blog will assist you to educate trial courts concerning “good” vs. “junk” behavioral science.  For example, the Federal Judicial Center developed a Reference Manual on Scientific Evidence.  This manual aids the gate-keeping responsibility of the courts under Daubert.