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 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.     

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.     

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.     

Expert psychological testimony on eyewitness reliability before and after Daubert: the state of the law and the science

This article examines the legal and scientific issues inherent in the use of expert psychological testimony on the factors that affect eyewitness reliability. First, the history of the use of such expert testimony is traced. Next, we look at the criteria that state and federal courts have used in determining whether to admit such testimony, as well as the grounds upon which the testimony has been excluded. We then examine the Daubert decision and discuss its implications for the use of expert eyewitness testimony. We conclude by reviewing eyewitness research and research on jury decision-making that is likely to assume new importance in the post-Daubert era.     

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.     

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.     

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.     

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.     

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.     

The effects of rational and experiential information processing of expert testimony in death penalty cases

Past research examining the effects of actuarial and clinical expert testimony on defendants' dangerousness in Texas death penalty sentencing has found that jurors are more influenced by less scientific pure clinical expert testimony and less influenced by more scientific actuarial expert testimony (Krauss & Lee, 2003; Krauss & Sales, 2001). By applying cognitive-experiential self-theory (CEST) to juror decision-making, the present study was undertaken in an attempt to offer a theoretical rationale for these findings. Based on past CEST research, 163 mock jurors were either directed into a rational mode or experiential mode of processing. Consistent with CEST and inconsistent with previous research using the same stimulus materials, results demonstrate that jurors in a rational mode of processing more heavily weighted actuarial expert testimony in their dangerousness assessments, while those jurors in the experiential condition were more influenced by clinical expert testimony. The policy implications of these findings are discussed.     

Determining dangerousness in sexually violent predator evaluations: cognitive-experiential self-theory and juror judgments of expert testimony

Past research examining the effects of expert testimony on the future dangerousness of a defendant in death penalty sentencing found that jurors are more influenced by less scientific clinical expert testimony and tend to devalue scientific actuarial testimony. This study was designed to determine whether these findings extend to civil commitment trials for sexual offenders and to test a theoretical rationale for this effect. In addition, we investigated the influence of a recently developed innovation in risk assessment procedures, Guided Professional Judgment (GPJ) instruments. Consistent with a cognitive-experiential self-theory based explanation, mock jurors motivated to process information in an experiential condition were more influenced by clinical testimony, while mock jurors in a rational mode were more influenced by actuarial testimony. Participants responded to clinical and GPJ testimony in a similar manner. However, participants' gender exerted important interactive effects on dangerousness decisions, with male jurors showing the predicted effect while females did not. The policy implications of these findings are discussed.     

"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."     

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.     

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.     

Empathy and the expert witness

This paper argues that the expert witness who offers empathic testimony may significantly assist the trial lawyer in defending certain personal injury cases. The author considers his own congenital deformity from a subjective and objective analysis of experience. He then uses this deformity and the analysis to illustrate empathic testimony. A courtroom example is given. The conclusion argues the importance of permitting the experience of psychic trauma to speak for itself. It is also concluded that such experience and its analysis cannot be easily refuted as psychological projection. Trial lawyers could find the use of empathic testimony and its analysis of experience an effective tactic.     

Expert Trespassing Testimony and the Ethics of Science Communication

Scientific expert testimony is crucial to public deliberation, but it is associated with many pitfalls. This article identifies one—namely, expert trespassing testimony—which may be characterized, crudely, as the phenomenon of experts testifying outside their domain of expertise. My agenda is to provide a more precise characterization of this phenomenon and consider its ramifications for the role of science in society. I argue that expert trespassing testimony is both epistemically problematic and morally problematic. Specifically, I will argue that scientific experts are subject to a particular obligation. Roughly, this is the obligation to qualify their assertions when speaking outside their domain of scientific expertise in certain contexts. Thus, I argue that scientists who possess expert knowledge are confronted with hard questions about when and how to testify and, therefore, that being a scientific expert comes with great responsibility. Consequently, I provide a concrete “expert guideline” according to which scientific experts, in certain contexts, face an obligation to qualify their assertions when speaking outside their domain of expertise. Furthermore, I consider a number of the conditions in which the guideline is waived or overridden. On this basis, I consider the broader aspects of the roles of scientific experts in a society with a high division of cognitive labor that calls for trust in scientific expert testimony.     

Should human figure drawings be admitted into court?

In recent years, there has been debate about the validity of figure drawings, although surveys of clinicians in both general and forensic practice still find them to be one of the most widely used tests of personality functioning. Using both Heilbrun's (1992) guidelines for the use of psychological tests in a forensic evaluation and the U.S. Supreme Court's Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) criteria for the admission of scientific evidence, I examine the admissibility of human figure drawings in court. The results suggest that the most commonly used methods for interpreting human figure drawings fall short of meeting the standards for admissibility. The use of overall rating scales, although weak in validity, appear to minimally meet these standards.     

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.