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.     

Expert testimony in child sexual abuse cases: The effects of evidence,coherence and credentials on juror decision making

Psychological experts have been used increasingly to testify in child sexual abuse cases, yet little research has investigated what specific factors make experts effective. This study examined the potential effects that credentials, evidence strength and coherence may have on juror decision making. Sixty‐four mock jurors read cases of child sexual abuse, followed by experts' testimony and rated guilt of the defendant, effectiveness of the expert testimony and credibility of the victim. Evidence strength and coherence of the testimony affected all dependent variables, and the interaction was significant. Guilt ratings of the defendant were lower and the victim was rated as less credible when both evidence strength and coherence were low. The credentials of the expert, however, had negligible impact. These findings indicate that experts can be effective and impact jurors when testimony is either high in coherence or high in evidence. Copyright © 2009 John Wiley & Sons, Ltd.     

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.     

Problems of diagnosis and legal causation in courtroom use of post-traumatic stress disorder

Serious problems with the diagnosis of Post-Traumatic Stress Disorder (PTSD) render it vulnerable to legal challenge and subject to abuse. Problems in legal causation are outlined and include the issues of prior susceptibility, identification of the stressor, symptom assessment, intervening factors, and criminal responsibility. Trial courts continue to question the admissibility of PTSD expert witness testimony. To ensure the continuing validity of PTSD, its use should be limited, and expert witness testimony increasingly supported by empirically based research data.     

Pre-trial therapy for child witnesses in cases of sexual abuse: A scoping literature review

Globally, child complainants of sexual abuse are expected to testify in criminal proceedings and in some countries therapy is delayed until after the child testifies as not to contaminate the child’s version of events. We carried out a scoping review of the literature on the provision of pre-trial therapy to child witnesses in cases of sexual abuse, to identity pertinent practice issues. We searched the following data bases: Academic FileOne, CINAHL, Cochrane Library, eBook (EBSCOHost); HeinOnline, OAPEN Library, PscyhARTICLS, PscyhINFO; SocINDEX, ScienceDirect, Google Scholar, and Scopus. We identified white and grey literature for the period spanning 1980 to 2016. Inclusion criteria included studies published in English, experimental studies, literature reviews, and policy documents relating to the provision of pre-trial therapy for child witnesses in criminal cases of sexual abuse. We discovered that an internationally accepted clear definition of pre-trial therapy is needed to ensure a common understanding thereof amongst all role players. A dearth of empirical studies exists and consequently the possible impact of different forms of therapeutic approaches on the child witness’ testimony is yet to be conclusively determined. In the interim, therapists and other role players should be acutely aware of the impact of different forms of therapy on the child witness’s testimony.     

Understanding expert testimony on child sexual abuse denial after New Jersey v. J.L.G.: Ground truth,disclosure suspicion bias,and disclosure substantiation bias

The New Jersey Supreme Court held in New Jersey v. J.L.G. (2018) that experts can no longer explain to juries why sexually abused children might deny abuse. The court was influenced by expert testimony that “methodologically superior” studies find lower rates of denial. Examining the studies in detail, we argue that the expert testimony was flawed due to three problems with using child disclosure studies to estimate the likelihood that abused children are reluctant to disclose abuse: the ground truth problem, disclosure suspicion bias, and disclosure substantiation bias. Research identifying groups of children whose abuse can be proven without reliance on disclosure reveals that denial of sexual abuse is common among abused children.     

Factors influencing juror verdict in a case involving repressed memories of abuse

Mental health professionals acting as expert witnesses are expected to testify about the prevalence of sexual abuse, and also about the veracity of memory. In cases involving adult survivors of sexual abuse, this testimony is typically about repressed and false memory syndromes. Many professionals have noted concerns about the lack of definitive data to support either syndrome. This study examined the following variables: juror knowledge and experience with repressed and false memory syndromes, juror attitudes about sexual abuse and memory recovery techniques, and gender of juror on verdict. Results include effects for repressed memory knowledge/experience and gender. Gender differences were found regarding attitudes about abuse and memory. Concluding comments include practical and research implications of the study results.     

Factors influencing juror verdict in a case involving repressed memories of abuse

Mental health professionals acting as expert witnesses are expected to testify about the prevalence of sexual abuse, and also about the veracity of memory. In cases involving adult survivors of sexual abuse, this testimony is typically about repressed and false memory syndromes. Many professionals have noted concerns about the lack of definitive data to support either syndrome. This study examined the following variables: juror knowledge and experience with repressed and false memory syndromes, juror attitudes about sexual abuse and memory recovery techniques, and gender of juror on verdict. Results include effects for repressed memory knowledge/experience and gender. Gender differences were found regarding attitudes about abuse and memory. Concluding comments include practical and research implications of the study results.     

Perceptions of Children's Credibility in Sexual Assault Cases1

Children's testimony often plays a central role in prosecutions of child sexual abuse. Nevertheless, research on jurors' perceptions of the credibility of child sexual assault victims remains limited. In three experiments, we examined mock jurors' reactions to children's testimony about sexual abuse. Participant jurors were exposed to videotaped or written scenarios of child sexual abuse trials and then rated victim credibility and defendant guilt. Analyses indicated that: (a) victim age was either inversely related or unrelated to perceptions of victim credibility, (b) women were more likely than men to find child victims credible, (c) corroborating testimony from a child victim increased the credibility of another child victim, and (d) exposure of participants to past criminal acts and other negative defendant character evidence heightened perceived victim credibility and defendant guilt. Implications for understanding jurors' reactions to child witnesses are discussed.     

The corroboration requirement in child sex abuse cases

The sharp rise in reports of child abuse has led to efforts to protect children in family courts in child protective proceedings. Hearsay evidence of a child's prior statements may be admitted in child protective proceedings, but such evidence is legally insufficient to support an adjudication of abuse without corroborative evidence. Courts have admitted expert psychological, psychiatric or social work testimony about the child sex abuse syndrome as sufficient corroborative evidence. The testimony is called “validation” testimony. The scientific basis for such validation testimony in the absence of a disclosure by the child is very weak. Courts have also tended to accept the most minimal evidence as corroboration of the child's out-of-court statements, including other hearsay evidence. The socially valuable policy of protecting children by admitting weak evidence, such as validation testimony, or other hearsay, should be reviewed to ensure the evidence meets criteria of reliability in order to minimize erroneous determinations.     

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.     

Health Outcomes by Closeness of Sexual Abuse Perpetrator: A Test of Betrayal Trauma Theory

Summary

In this chapter, practicing attorney Brooks Cooper illuminates how the legal tradition of applying different standards to the ad-missibility of expert and lay opinions as evidence in litigation complicates delayed-discovery sexual abuse cases. Admissibility standards have long been a source of controversy, and recent developments in law, such as the pre-trial evidentiary hearings that invoke the “gatekeeper” function of the judge under the standard enunciated in Daubert v. Mer-rell-Dow Pharmaceuticals, have become a favored strategy by the defense in an effort to bar delayed memory testimony by characterizing it as the product of unreliable science. To overcome this litigation hurdle, Mr. Cooper contextualizes the present controversy in the history of scientific evidence admissibility, tracing emerging trends in judicial opinion on scientific evidence from expert witnesses from the 1923 case Frye v. United States through the present, and offers strategies and techniques to maintain admissibility of the evidence before and during all phases of the trial.     

The admissibility of expert testimony regarding malingering and deception

This article discusses the legal admissibility of expert testimony and the ability of mental health professionals to detect malingering and deception among defendants. A legal analysis of the admissibility of expert testimony regarding malingering and deception in formal legal proceedings is presented. Some guidelines are provided to help mental health professionals and attorneys determine the admissibility of evidence they intend to introduce. Although psychologists and psychiatrists currently have a limited ability to identify accurately malingering and deception, expert testimony about the genuineness of a defendant's mental illness is likely to be held admissible for both practical and evidentiary reasons. In contrast, evidence about a witness' credibility is rarely admissible. In addition, psychologists are ethically obliged to recognize their limitations in making representations about their skills.     

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.     

Confessions of a Whistle-Blower: Lessons Learned

In 1988 I began a report on the accuracy of expert testimony in child sexual abuse cases utilizing Ralph Underwager and Hollida Wakefield as a case study (Wakefield & Underwager, 1988). In response, Underwager and Wakefield began a campaign of harassment and intimidation, which included multiple lawsuits; an ethics charge; phony (and secretly taped) phone calls; and ad hominem attacks, including one that I was laundering federal grant monies. The harassment and intimidation failed as the author refused demands to retract. In addition, the lawsuits and ethics charges were dismissed. Lessons learned from the experience are discussed.     

The use of statistics in criminal cases: An introduction

Statistics are increasingly playing a crucial role in criminal cases. As the articles in this Special Issue illustrate, they can form the principal basis for expert testimony (e.g., with respect to risk assessments), heavily influence decisions about policy (e.g., constitutional doctrine governing police stop‐and‐frisk practices), and help courts evaluate the admissibility of expert testimony (e.g., via proficiency testing). Unfortunately, courts have not always been up to the task of analyzing the value of statistical analysis. In the course of introducing the articles in this issue, this article provides some examples of how statistical information can be misconstrued and suggests several reasons why judges may be reluctant to engage with such information.     

Child sexual abuse evaluations: the scientist–practitioner model

The scientist-practitioner model is presented as a format for conducting child sexual abuse evaluations. This model bases conclusions on empirically established relationships between data and the behavior of interest, rather than on subjective opinions. Using empirically derived evidence, the scientist-practitioner defines child sexual abuse as a life event rather than a clinical syndrome, relies on base rates of behavior for distinguishing and understanding differences between nonsexually abused and sexually abused children, and considers issues of instrument sensitivity and specificity when utilizing assessment tools in child sexual abuse evaluations. This model enlists safeguards to keep the evaluator from inappropriately forming cause and effect associations between a child's single response (e.g., behavioral and emotional symptoms, interactions with anatomically detailed dolls, drawing genitalia) and the occurrence of an event (e.g., sexual abuse). © 1998 John Wiley & Sons, Ltd.     

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.     

Jurors' Decisions in Trials of Battered Women Who Kill: The Role of Prior Beliefs and Expert Testimony1

The present research explored the influence of four factors on mock jurors' decisions in a homicide trial involving a battered woman who killed her abusive husband: (a) jurors' preexisting beliefs about wife abuse, (b) the presence of expert testimony on the battered woman syndrome, (c) jurors' beliefs in a just world, and (d) gender. Mock jurors listened to a trial involving a woman who had killed her abuser, which either contained expert testimony or did not, and then rendered various judgments about the case. Results indicated that those individuals who were more informed about the dynamics of abuse and those exposed to the expert testimony, compared to their respective counterparts, were more believing of the battered woman's account of what occurred. In general, weak believers in a just world were more lenient in their judgments, with verdicts of not guilty being associated with weaker beliefs in a just world than guilty verdicts. Weak believers in a just world also felt that the expert testimony applied more to the defendant than did strong believers. Finally, women who were weak believers in a just world were less likely to hold the defendant responsible for the events and to be more informed about the dynamics of abuse following the experiment.     

Repression, Dissociation, and the Recovered Memory Debate: Constructing Scientific Evidence and Expertise

We examine arguments about the scientific status of repression and dissociation in the written discourse of academic social scientists and clinicians on the controversial issue of recovered memories of child sexual abuse. The rhetorical deployment of theories, methods, and evidence by representatives of both camps regarding the authenticity of recovered memories, repression, and dissociation is compared. The ways in which supporters and sceptics bolster claims for their own expertise while undermining that of opponents are also explored. Supporters of recovered memory emphasise the pragmatic relevance of theories and clinical evidence, while sceptics draw rhetorically on positivist standards of scientific rigour and reliability to undermine claims of recovered memory. The themes of relevance and reliability are then related to discussions of recent legal changes in the United States on the admissibility of expert opinion evidence in recovered memory cases.