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Challenging the Expert Mental Health Witness in Any Type of Litigation
For
a pdf version of this file, click here:
Challenging mental health experts
involves two key tasks: understanding the credentialing process so as
to determine the true qualifications of your expert and
understanding the core principles of mental health diagnosis and
assessment. The former task is relatively easy to accomplish: there are
books published on this subject (see below) and websites and articles
also readily available (also see below).
Assessing the MHP’s
credentials
It can be
difficult to judge exactly the degree of expertise your expert witness
actually possesses. With experts coming from a diversity of
backgrounds, there unfortunately is no single criterion by which you can
assess everyone. Moreover, there are plenty of spurious credentials out
there, i.e. credentials which sound impressive but which in fact are
little more than “vanity boards,” conferring their imprimatur on anyone
who’s willing to pay the fee. Forensic psychologists are bound by the
Specialty Guidelines for Forensic Psychology. You can read these
standards of practice here:
http://www.unl.edu/ap-ls/foren.pdf.
With
psychologists, at least, there is a way to determine whose credentials
are truly more representative of bona fide training and experience.
Check out this link:
http://www.xmission.com/~sgolding/publications/expert_voir_dire.htm
Stephen Golding is
a nationally-recognized forensic psychologist whose article on the voir
dire of experts is right on point. Some of his tips apply to medical
doctors as well. In general, the rule is to check out the criteria by
which the organizations from which doctor is claiming expert status are
awarded.
It’s also a very good idea
to read Dr. Stephen Golding’s article titled “Voir Dire of Forensic
Experts.” You can find in on the web here:
http://www.xmission.com/~sgolding/publications/expert_voir_dire.html
Understanding
Principles of Diagnosis and Treatment
For a succinct
description of some major points of the vulnerabilities of all
mental health testimony, look at this URL:
http://www.uea.ac.uk/~wp276/lawyer.htm The article refers to Dr.
Terrence Campbell’s article “Challenging Psychologists and Psychiatrists
as Expert Witnesses” (reference in Footnote #1). In that article, Dr.
Campbell states that one key problem is that any errors are hard to
spot, owing to the highly technical nature of the testimony. One key
flaw in all mental health testimony is this: the Court allows
expert witness testimony on the premise that it is scientific
knowledge, with all that term’s assumptions of reliability and
validity. Science, by definition, is that field of inquiry whose data
rests on information that is verified by replicable experiments. Yet
the behavioral sciences are NOT “hard” sciences, i.e. they do not
usually involve true experimentation. (There is, however, a branch of
psychology that is truly experimental; however, those psychologists
almost never are involved in forensic work.) One can easily see how the
definition of “science” fits such fields as physics (if you drop
something, gravity will pull it down towards the earth, every single
time) or math (no matter how many times you add 2 plus 2, the answer is
always 4). But there is very little in the “science” of human behavior
that qualifies as true science. Thus, the vast majority of the time,
the “evidence” being presented by the mental health practitioner is more
reflective of society’s values and/or the expert’s opinion.. So then
the question becomes “Is this information truly an expert
opinion?”
The following book will vividly expose the inherent weaknesses of mental
health testimony in an easily-understood, highly informative way:
Hagen, Margaret.
(1997) Whores of the Court: The Fraud of Psychiatric Testimony and
the Rape of American Justice Regan Books. New York.
As Booklist said in its
review, “A
take-no-prisoners condemnation of psychiatric experts being waved into
the witness box, this account trashes psychiatry in general as a quack
profession. Hagen (a psychology professor) assails most of the
diagnostic tools of the field in her text, which roams among court cases
whose outcome hinged on the testimony of mental-health experts. Her
fundamental contention is that psychiatry is a junk science whose
theories when extended to matters of legal culpability go against common
sense.”
If you want a more
technical, highly detailed approach, the classic books in this area have
long been the Ziskin & Faust 3-volume series:
Ziskin, J. Coping with Psychiatric
and Psychological Testimony
5th Edition.
(1995 Law and Psychology Press. Los Angeles.
This 3-volume set is the
gold standard on this subject. Ziskin explores the inherent problems in
both data collection and interpretation of that data. He observes that
the diagnostic categories themselves are controversial and questions
their utility in a forensic context. Another author’s
survey of the literature lead to his conclusion that clinical judgments
are very often flawed. Overall, said Campbell in that article, although
the value of the MHP’s expert witness testimony is supposed to lie in
his/her scientific expertise, very few of the MHP’s conclusions are
based in real science. Like Hagen, he suggests that “a
well-informed attorney can contend with (mental health testimony) via
motions to limit or bar such testimony. Well-prepared
cross-examinations can so effectively support such motions that they
demand favorable decisions.” (p. 71)
Zizkin & Faust’s work is, as
stated, a three volume set. Here is the table of contents for each
volume:
Volume I:
1.
The Bases of Expert
Testimony
2.
Science & the Scientific
Method
3.
Challenging the Scientific
Status of Psychology & Psychiatry
4.
Challenging Principles and
Systems of Classification
5.
Challenging Clinical
Judgment
6.
Challenging Interviews and
the Clinical Examination
7.
Challenging the Results &
Conclusions of Psychiatric and Psychological Evaluation
8.
Challenging the Expert’s
Experience
9.
Challenging Credentials &
Qualifications
Volume II:
10.
Challenging Psychological
Tests: Overview
11.
Challenging Intellectual
Testing
12.
Challenging Personality
Testing: “Objective” Methods
13.
Challenging Personality
Testing: Projective Methods
14.
Challenging Computerized
Testing & Interpretation
15.
Neuropsychological (Brain
Damage) Assessment
16.
Challenging the Assessment
of Special Groups
17.
Challenging Recovered
Memories
18.
Challenging the Assessment
of Malingering or Credibility
19.
Challenging the Diagnosis
of Schizophrenic Disorder, Thought Disorder and Depression
20.
Challenging PTSD
21.
Challenging the Eyewitness
Expert
22.
Challenging Prognosis and
Treatment
23.
Special Problems with
Sexual Abuse Cases
24.
Challenging Assessments of
Dangerousness & Risk
25.
Challenging Child Custody
Testimony
Volume III.
1.
Introduction
2.
Making Use of Ethical
Principles, Guidelines & Standards
3.
Investigation
4.
Analyzing the Clinician’s
Report
5.
Strategy & tactics
6.
Dealing with Experts’
tactics
7.
Depositions
8.
Cross-Examination---Samples & Suggestions
9.
Cross-Examination in
Criminal Cases
10.
Cross-Examination in
Personal Injury Cases
11.
Cross-Examination in Child
Custody Cases
12.
Motion to Bar or Limit
Testimony
13.
Responses to Criticisms of
the 4th Edition
14.
Trying Cases Visually
As Campbell points out, “the
accuracy with which clinical judgment predicts future events is often
little better than random chance.” (p. 68). He also contends that
“preoccupied with signs of maladjustment, psychologists and
psychiatrists disregard the strengths and re-sources of their patients,
and as a result, they commonly overestimate the prevalence of
psychopathology.” (p.69)
If you are challenging a child
custody evaluation, read Dr. David Martindale’s essay (below). Dr.
Martindale, a New York psychologist, is board-certified in forensic
psychology and specializes in critiquing other psychologist’s
evaluations. His article is on my website.
Understanding Psychological Principles and Procedures
It is not
possible, of course, to summarize in a few paragraphs what takes
students years of study and practice to master. For an overview of
psychological testing, read my article “A
Primer of Psychological Testing,”
found elsewhere on this web page. To gain a global overview of
diagnosis, read Terrence Campbell’s article on diagnostic clarification
at:
www.campsych.com . You’ll find it in the list of articles: look on
the right side.
Then you may wish to
expand your knowledge by reading my article, “Neurotic,
Psychotic or Just Plain Nuts?”
available on this website.
As stated, mental
health diagnosis is a highly complex subject, and almost always, you
will need to consult with a psychologist to truly understand the
psychological nuances of your case. I offer free. 30-minute
consultations and invite you to call me at (650)368-8318 so I can assist
you more specifically
Conclusion
While there is clearly a great deal of valuable information that mental
health professionals can offer the Courts, it is nevertheless also true
that it is all too easy for MHPs to disguise their opinion or theory as
hard, scientific fact. One of the principle emphases of cross
examination should be to clearly differentiate between the two types of
information, i.e. make sure that the expert’s findings are genuinely
expert, that they adhere to scientific standards of reliability and
validity. The extremely technical information that MHPs offer can make
it hard to spot such deception (and indeed, the expert almost certainly
does not view it as being deceptive), and the services of another
MHP to “decode” the data and suggest strategies for cross-examination
may prove to be quite useful.
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