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.     

Institutional Constraints on the Ethics of Expert Testimony

We examined the dilemmas posed by the involvement of expert witnesses in court cases and the institutional constraints on the ethics of expert testimony. The causes for the incorporation of bad science into legal decisions, potential solutions to this dilemma, and the limitations of these solutions are considered. We concluded that law, science, and experts must respond to the problems posed by expert witnessing.     

Jurors' Views on the Value and Objectivity of Mental Health Experts Testifying in Sexually Violent Predator Trials

Although psychologists and psychiatrists often testify in court, we know relatively little about the extent to which jurors value the testimony they hear from these experts. We surveyed 161 jurors who rendered opinions in 14 sex offender civil commitment trials after hearing testimony from psychologists and psychiatrists serving as expert witnesses. Most jurors reported that the experts they heard testify were honest, and they tended to attribute disagreements among experts to case complexity, as opposed to adversarial allegiance or bias. Most reported that hearing from the experts helped them make better decisions and that experts using risk assessment instruments could make more accurate predictions than those who did not. Jurors were, however, more skeptical about the ability of experts to accurately predict recidivism when they heard testimony from both prosecution and defense experts. Findings suggest that jurors value risk assessment testimony from experts, but that experts must think carefully about how to best make risk assessment instrument results accessible to jurors. Copyright © 2014 John Wiley & Sons, Ltd.     

Clinician testimony in suicide litigation: A cause to be uneasy

This is an illustrative article rather than a research study. We offer opinions and recommendations about what we view as unfortunate clinician testimony in suicide‐related malpractice cases, testimony that – inadvertently or not – supports or encourages inadequate care of suicidal patients. The principles apply to both psychiatrists and non‐psychiatrists, although the former appear more often in our work. We particularly consider the roles and testimony, in court or at deposition, of psychiatrists, whether as defendants, expert witnesses, or fact witnesses. We cite examples of what we view as poor, disingenuous, dishonest and even dangerous testimony that we believe moves the profession toward unsafe patient care. The examples illustrate what we (and sometimes others) describe as normalization of deviance, pre‐suit puffery, self‐serving defendant testimony, expert pride supplanting testimonial responsibility, expert arrogance, expert parroting of attorney suggestions, witness ignorance and avoiding facts, unconscious expert bias, inexperience thwarting justice, misleading use of terms such as “predictability,” and expert witnesses who lack the direct‐care experience that jurisdictions often require in order to opine about defendant clinicians' day‐to‐day patient care. The examples often reveal concerns beyond the category chosen, and should not be expected to convey all of the facts of a particular case.     

"Good and bad, I defined these terms, quite clear no doubt somehow": Neuroimaging and competency to be executed after Panetti

There has been little consideration, in either the caselaw or the scholarly literature, of the potential impact of neuroimaging on cases assessing whether a seriously mentally disabled death row defendant is competent to be executed. The Supreme Court's 2007 decision in Panetti v. Quarterman significantly expanded its jurisprudence by ruling that such a defendant had a constitutional right to make a showing that his mental illness "obstruct[ed] a rational understanding of the State's reason for his execution." This article considers the impact of neuroimaging testimony on post-Panetti competency determination hearings, and looks at multiple questions of admissibility of evidence, adequacy of counsel, availability of expert assistance, juror attitudes, trial tactics, and application of the Daubert doctrine, and also considers the implications of the lesser-known Panetti holding (that enhances the role of expert witnesses in all competency-to-be-executed inquiries). It warns that the power of the testimony in question has the capacity to inappropriately affect fact-finders in ways that may lead "to outcomes that are both factually and legally inaccurate and constitutionally flawed."     

Legal and Social Issues Surrounding Closed-Circuit Television Testimony of Child Victims and Witnesses

Summary

Prosecution of crimes involving child victims and witnesses is particularly difficult because of the age of the children involved. Facing the alleged offender in court and the experience itself of testifying in an open court with dozens of onlookers are acutely difficult. The effect on children may be traumatic, with the potential to produce substantial psychological and emotional harm. Various court procedures have been implemented in the United States in an effort to minimize these effects. Court procedures can include erecting screens to shield the child victim or witness, presenting videotaped testimony, or testifying via one-way or two-way closed-circuit television. Closed-circuit television (CCTV) testimony, which is especially controversial, involves both legal issues surrounding the constitutionality of such testimony and social issues regarding the effectiveness of closed-circuit television testimony. Substantial variation across states in provisions for closed-circuit television testimony for child witnesses is problematic. Consideration is given to how social science research directly influenced the Supreme Court's decision in Maryland v. Craig(1990), and the current state of research regarding use of CCTV and court outcomes. Some research suggests a pro-defense bias when CCTV is used.     

Mental health expert witnesses: Of science and crystal balls

This article reviews the history of and basis for mental health testimony. It surveys the roles of such experts in the legal system and the concomitant problems with current approaches. Finally, it suggests specific reforms that may improve the use of mental health experts in legal proceedings.     

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.     

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.     

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.     

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.     

Of witches,madmen, and products liability: An historical survey of the use of expert testimony

The United States Supreme Court's recent decision in Daubert v. Mewell Dour Pharmaceutical Inc. has focused attention on judicial treatment of expert testimony. A survey of the development of the forensic use of such testimony helps to explain the salient characteristics of modem American practice. The survey, in the context of medical experts, discloses a several centuries long trend toward an adversarial approach that places selection, preparation, and presentation of expert witness testimony ever more completely in the hands of the litigants. This trend has been challenged since at least the 1800s by those desiring an inquisitorial alternative featuring court's witnesses or neutral panels of experts. These proposals have generally been rejected. Daubert represents a modest step in the direction of greater judicial control of the presentation of expert evidence but raises questions about the evenhandedness of heightened judicial scrutiny of proffered expert testimony.     

Developmental reversals in false memory: a review of data and theory

Can susceptibility to false memory and suggestion increase dramatically with age? The authors review the theoretical and empirical literatures on this counterintuitive possibility. Until recently, the well-documented pattern was that susceptibility to memory distortion had been found to decline between early childhood and young adulthood. That pattern is the centerpiece of much expert testimony in legal cases involving child witnesses and victims. During the past 5 years, however, several experiments have been published that test fuzzy-trace theory's prediction that some of the most powerful forms of false memory in adults will be greatly attenuated in children. Those experiments show that in some common domains of experience, in which false memories are rooted in meaning connections among events, age increases in false memory are the rule and are sometimes accompanied by net declines in the accuracy of memory. As these experiments are strongly theory-driven, they have established that developmental improvements in the formation of meaning connections are necessary and sufficient to produce age increases in false memory.     

‘The witness who saw, /he left little doubt’: a comparative consideration of expert testimony in mental disability law cases in common and civil law systems

The question of how courts assess expert evidence—especially when mental disability is an issue—raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (‘cherry picking’ evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context—in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial decision making in both the common law and civil law. Finally, we speculate as to whether the new United Nations Convention on the Rights of Persons with Disabilities is likely to have any impact on practices in this area. Copyright © 2009 John Wiley & Sons, Ltd.     

Compensation for pain,suffering, and other psychological injuries: The of Daubert on employment discrimination claims

The Daubert standard for admitting expert testimony places increased emphasis on the scientific basis for professional opinions. This article identifies factors mental health professionals should consider to meet that standard and Federal Rule of Evidence 702 when evaluating claims of psychological injuries as authorized by the Civil Rights Act of 1991, in cases of sexual harassment, retaliation, and other forms of employment discrimination. First, the contribution experts can make by presenting a framework to assess and understand the nature, duration, intensity and severity of emotional injuries is outlined. Specialized knowledge helpful in assessing these claims is reviewed in light of the scientific literature on stressors, anxiety disorders, somatoform disorders, depression, posttraumatic stress disorder, and ways in which related symptoms manifest regarding events in the workplace or following loss of employment. Second, the role of qualified experts to facilitate determinations of causation is discussed, highlighting factors that bear on preexisting harm, intervening injurious events, the exclusion of alternate sources of mental distress, emotional harm and humiliation, and mitigation of damages.     

Eyewitness testimony

The study of eyewitness testimony is thriving. Over the last three decades, psychologists have made important discoveries, and applied those discoveries to the legal system in myriad ways. Along the way, there were disagreements, which were typically healthy in nature. I discuss a few, for example, centering around the impact of misinformation on witnesses, the role of witness confidence and lineup procedures, and expert testimony. The “Memory Wars” were not so friendly, but hopefully the collective effort has helped to make the world a fairer place.