Expert testimony on malingering: The admissibility of clinical procedures for the detection of deception

The detection of malingering in the legal context frequently requires the use of psychiatric and psychological expert testimony. These experts may rely on certain clinical techniques in order to detect deception. This article addresses the problem of the admissibility in evidence of clinical procedures used by these experts. The scientific reliability and effect on constitutional rights of procedures such as hypnosis, polygraphy, “truth” drugs, and psychological tests is examined.     

Risk Assessment in the Law: Legal Admissibility,Scientific Validity,and Some Disparities between Research and Practice

Risk assessment expert testimony remains an area of considerable concern within the U.S. legal system. Historically, controversy has surrounded the constitutionality of such testimony, while more recently, following the adoption of new evidentiary standards that focus on scientific validity, the admissibility of expert testimony has received greater scrutiny. Based on examples from recent appellate court cases involving sexual violent predator (SVP) hearings, we highlight difficulties that courts continue to face in evaluating this complex expert testimony. In each instance, we point to specific problems in courts' reasoning that lead it to admit expert testimony of questionable scientific validity. We conclude by offering suggestions for how courts might more effectively evaluate the scientific validity of risk expert testimony and how mental health professionals might better communicate their expertise to the courts. Copyright © 2013 John Wiley & Sons, Ltd.     

Bias and expert testimony of mental health professionals in adversarial proceedings: A preliminary investigation

The role of mental health professionals testifying as expert witnesses has been the subject of increasing criticism. Cases in which opposing experts reach different conclusions are dismissed as “battles of the experts” and psychologists and psychiatrists are described as “hired guns.” This preliminary, analogue study examined the degree to which the opinions and testimony of mental health professionals may differ according to which side retains the expert. Results provided some support for the proposition that mental health professionals' testimony may vary according to the side by which they are retained.     

A survey of psychological test use patterns among forensic psychologists

Clinical psychologists are frequently called on to testify in court regarding mental health issues in civil or criminal cases. One of the legal criteria by which admissibility of testimony is determined includes whether the testimony is based on methods that have gained "general acceptance" in their field. In this study, we sought to evaluate the psychological tests used in forensic assessments by members of the American Psychology-Law Society Division of the American Psychological Association, and by diplomates in the American Board of Forensic Psychology. We present test results from this survey, based on 152 respondents, for forensic evaluations conducted with adults using multiscale inventories, single-scale tests, unstructured personality tests, cognitive and/or intellectual tests, neuropsychological tests, risk assessment and psychopathy instruments, sex offender risk assessment instruments, competency or sanity-related instruments, and instruments used to evaluate malingering. In addition, we provide findings for psychological testing involving child-related forensic issues.     

A consideration of challenges to psychological assessment instruments used in forensic settings: Rorschach as exemplar

In this brief primer, we provide an outline of key issues that will help psychologists organize and prepare their expert testimony. These issues include the need to obtain essential sources of research, a review of the actual legal standards regarding admissibility of test data in expert testimony, the nature of the expert relative to the assessment instrument in expert testimony, the nature of legal versus scientific debate, and the examination of appropriate qualifications of expertise when offering legal testimony. In addition, we use a summary of information contained in several recent articles to address challenges directed against forensic psychological testing. We use the empirical literature on the Rorschach as an exemplar in discussing these issues, as the admissibility of the Rorschach in particular has been challenged, and the issues frequently focused on with the Rorschach are equally applicable to other psychological measures. In this article, we provide essential sources of Rorschach research regarding several empirical studies that summarize important information and directly address previous criticisms of the measure.     

Predicting the present: expert testimony and civil commitment

This article uses the Supreme Court's decision in Daubert as an opportunity to address a chronic concern regarding the disparity between mental health law as officially enunciated and the practical application of that law. After Daubert, admissibility of expert evidence under the federal rules requires a qualified expert, a reliable basis for the testimony, and relevance to the legal issue. Ongoing psychological research pursues empirical data that expands the scope of psychological expertise and clarifies its limits. This article addresses the requirement of relevance by examining the logical relationship between the psychologist's actuarial and clinical expertise and the legal issues addressed by the court in civil commitment proceedings. Ideally, Daubert might stimulate a process of cooperative analysis in which psychologists and lawyers clarify the proper roles of psychological experts and of the courts with which those experts interact. This article begins that project by clarifying the legal determination required in civil commitment proceedings and by explicating the relationship between the responsibilities of experts and those of courts.     

Psychiatric predictions and the death penalty: An unconstitutional sword for the prosecution but a constitutional shield for the defense

The Supreme Court continues to permit psychiatrists and other mental health professionals to testify regarding capital defendants' propensity to future dangerousness. Virtually all scientific evidence indicates that these predictions are unreliable. However, capital juries are particularly likely to rely heavily on such testimony. The admission of this evidence violates the safeguards mandated by the Supreme Court's own case law demanding that a capital jury's discretion be guided. The Court must consider the reliability of evidence of future dangerousness, deny its admissibility on behalf of the prosecution, but structure a rule that does not infringe on capital defendants' right to present evidence in mitigation that may implicate future dangerousness.     

Expert evidence by psychologists: Sometimes problematic and often premature

This article provides a critical review of two major types of expert evidence: (a) clinical assessments, and (b) generalizations drawn from psychological research. Strong arguments both for and against both types of testimony have been offered by legal experts and psychologists. These arguments are evaluated and the conclusion is drawn that there are two fundamental problems for psychologists in the role of expert. First, the types of assessments clinicians are asked to make (e.g., concerning the accused's mental state at the time of committing the offense) may exceed the capacity of the discipline; such assessments are problematic. Second, the research foundation that psychologists employ in court does not always apply to the court situation in the way experts imply; the application of laboratory research findings to real world contexts is sometimes premature. The article concludes with an admonition that psychologists should adopt a more conservative response to requests to provide expert evidence.     

Confession evidence,psychological vulnerability and expert testimony

There have been major changes in English Law with regard to confession evidence, which followed the implementation of the Police and Criminal Evidence Act (PACE) in January 1986. This paper reviews the main legal changes that are relevant to the admissibility and reliability of confessions and their psychological importance within the context of both research and expert testimony.     

Testimony based on the Millon Clinical Multiaxial Inventory: review, commentary, and guidelines

Test results from the MCMI have been ruled admissible in court for a variety of clinical and forensic issues. This article addresses MCMI issues such as the test's applicability and admissibility of test results in forensic evaluations, test administration, test scoring, malingering and deception, prediction and diagnosis of behavior, reliability, validity, operating characteristics and diagnostic efficiency statistics, and use of computer-assisted interpretation of test results for forensic presentation. Recommendations are suggested for dealing with each of these issues in a forensic context.     

Can Ziskin withstand his own criticisms? problems with his model of cross-examination

Ziskin has mounted a concerted attack on the scientific basis of psychology and psychiatry and their ability to provide expertise to the courts. He has assailed both the clinical methods and conclusions rendered by these mental health professionals. To rebut expert testimony, Ziskin has proposed general principles of cross-examination. We discuss the limitations of this model and provide an initial study of its effectiveness.     

Social framework testimony in employment discrimination cases

The use of social framework testimony by social psychologists in employment discrimination cases is expanding. After reviewing the legal background of this type of testimony, we describe its content and discuss an important Title VII case of sex discrimination where the testimony played a critical role. We also distinguish social framework testimony from other types of expert testimony by psychologists.     

The impact of expertise and sufficient information on psychologists' ability to detect malingering

Twenty-two forensic diplomates and 22 general clinical psychologists were asked to review a variety of psychological data from one of four cases (two cases of malingering and two cases of legal insanity) to determine whether data suggested malingering or insanity. Of the 44 psychologists who reviewed cases, 86.4% accurately determined whether their protocol was from a malingerer or an insane person. Forensic diplomates and clinical psychologists were equally accurate in their determinations; only three subjects from each group misidentified their case. In spite of their success, confidence levels for both groups were reported as moderate. These results contradict previous studies that have found psychologists to not only be poor detectors of malingering, but also overconfident in their ability to detect it. It is believed that the success of psychologists in this study compared to previous studies was due to improved methodology.     

Testifying on Eyewitness Reliability: Expert Advice Is Not Always Persuasive1

This study investigates the impact of different types of expert testimony regarding the unreliability of eyewitness identification. In two hypothetical court cases involving eyewitnesses, expert testimony was presented that was either sample-based (presenting the results of a research program on eyewitness identification) or person-based (presenting information about the particular eyewitness under consideration); the expert either offered causal explanations for his unreliability claim or failed to do so. Two additional control groups (with and without eye-witness identification) were not presented with any expert testimony. The results indicate that subjects who had been confronted with an expert statement made more lenient judgments about the offender but did not discount the eyewitness identification completely. Sample-based information had a moderate impact on the subjects' judgments, regardless of whether or not causal explanations were given. Person-based testimony was the most influential type of expert advice when a causal explanation was provided but the least influential one when no reasons were given. The practical (international differences in admissibility of expert testimony) and theoretical implications (processing of base-rate information) of these findings are discussed.     

Standard of Care (Book)

A recent Supreme Court decision, Kumho Tire Co., Ltd. v. Carmichael (March 23, 1999), may have substantial impact on psychological expert testimony. Previous criteria for admissibility of scientific expert testimony now apply broadly to expert testimony, not just testimony narrowly grounded in scientific evidence. Judges will determine the relevance and reliability of all expert testimony, including that based on clinical experience or training. Admissible testimony will either satisfy the criteria established in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) or meet similarly rigorous standards judged appropriate to the particular field involved. Because psychological testimony has varied in its evidentiary basis, sometimes relying on science and otherwise on clinical training or experience, court decisions will gradually determine the precedent for its admissibility. We also discuss long-term consequences for the credibility of psychological expert testimony and the relation between psychology and law.     

Standardizing the psychological autopsy: addressing the Daubert standard

The psychological autopsy, as a research, clinical, and forensic tool, has gained widespread usage in suicidology over the last half century. In forensic settings, the lack of standardization and problems determining the procedure's validity and reliability pose significant issues for the procedure's admissibility under the Daubert standard of evidence. The Daubert standard requires that evidence must be founded on scientific knowledge and established five guidelines for judicial decisions regarding the admissibility of expert testimony. In this paper we examine expert opinion regarding the psychological autopsy and recommend a standardized protocol or template regarding areas and lines of inquiry for a psychological autopsy used in legal cases.     

The lawyer and the forensic expert: Boundaries of ethical practice

The role of attorneys in relationship to mental health experts is examined. Issues which are discussed include the necessity of expert testimony, selection of the expert, and the data underlying the expert opinion. In addition, the attorneys' responsibilities in presenting the mental health expert in court is discussed with reference to different elements of the trial process.