1

Psychology in the CourtroomCRITICAL ISSUES AND CONTROVERSIES

2

Presenters

Pamela Auble, Ph.D., ABPP Michael Engle, J.D., Esq. Scott Gale, Ed.D. Julie Gallagher, Ph.D., ABPP Karen Milliner, Psy.D. James S. Walker, Ph.D., ABPP Shannon Walker, J.D., Esq.

3

Karen Milliner, Psy.D.

Scott Gale, Ed.D.

Clinical and Forensic Psychology: Contrasting Roles

CONFLICTS AND CRITICAL DIFFERENCES

4

Initiating the services

Meeting the client Introducing the process Obtaining informed consent Explaining the limits of confidentiality Establishing rapport Engaging the client

5

Engaging the client

Empathizing with the client Validating the client’s perspective Approaching the client with neutrality Detaching from the client’s story Setting the parameters of the relationship Clarifying the purpose of the relationship

6

Identifying the client

Helping the client Helping the court Identifying the client Addressing the referral questions Allowing the client to lead the conversation Imposing structure on the interaction

7

Examining the client

Collecting information about the client Interviewing the client Assessing for mental illness Focusing on the specific mental capacity Capturing precise information Capturing sufficient information

8

Gathering information

Including collateral sources of information Actively seeking information Carefully reviewing records Seeking objective and subjective information Corroborating the client’s story Substantiating clinical findings Exploring alternative explanations

9

Analyzing information

Relying solely on self-report Assessing the accuracy of information Critically analyzing information Scrutinizing collateral information Assuming the accuracy of records Assuming the accuracy of others’ reports Considering information objectively

10

Arriving at conclusions

Considering secondary gain Assessing response style Approaching cases consistently Approaching cases impartially Clinical decision making Needing specialized knowledge Communicating findings

11

Suggested reading and references

American Psychological Association. (2013). Specialty Guidelines for Forensic Psychology. American Psychologist, 68, 7-19.

Goldstein, A. M. (Ed.). (2003). Handbook of psychology: Volume II Forensic psychology. Hoboken, New Jersey: John Wiley & Sons.

Goldstein, A. M. (Ed.) (2007). Forensic Psychology: Emerging Topics and Expanding Roles. Hoboken, New Jersey: John Wiley & Sons.

Greenberg, S. & Shuman, D. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 28, 50-57.

Greenberg, S. & Shuman, D. (2007). When worlds collide: therapeutic and forensic roles. Professional Psychology: Research and Practice, 38, 129-132.

Melton, G. B., Petrila, J., Poythress, N., & Slobogin, C. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York, NY: Guilford Press.

12

Conflicting RolesPRESERVING YOUR INTEGRITY

James Walker, Ph.D.

13

What’s a Forensic Psychologist For?

FRE 702 “expert testimony must be ‘based upon sufficient facts or data,’ must be ‘the product of reliable principles and methods,’ and must be offered by a witness who has ‘applied the principles and methods reliably to the facts of the case.’”

Daubert v. Merrill Dow Pharmaceuticals

In Tennessee, McDaniel v. CSX Transportation

Cases provide basis for a “helpfulness standard”

Expert’s job is to educate the court

Information must be based upon sound scientific data and principles

14

McDaniel v. CSX Transportation

Whether the scientific evidence has been tested and the methodology with which it has been tested.

Whether the evidence has been subjected to peer review or publication.

Whether a potential error rate is known.

Whether the evidence is generally accepted in the scientific community.

Whether the expert’s research in the field has been conducted independent of litigation.

15

(Physicians excepted)

T.C.A.Sec. 24-7-115

"In the trial of any civil suit, there shall be received in evidence if offered on behalf of any party thereto, opinions as to medical findings as a result of treatment or examination of the party, whether such opinions are based on subjective or objective findings; provided such opinions are those of persons otherwise qualified as medical experts. It is declared to be the intent of this section that medical opinions based on subjective findings are no longer to be excluded from evidence whether the opinion is from the treating expert or an expert called in for purposes of examination and evaluation."

16

Possible Roles for the Psychologist

Evaluating Expert

Subsequent Evaluating Expert

Reviewing Consultant

Consultant Advocate

All “hired guns”

Is it ever acceptable to combine roles?

17

Dangerous Ground

Prepping litigants for testing

Serving as a jury consultant (if already an expert)

Testifying only on one side of an issue

Suppressing data

Cherry picking data

Offering conflicting opinions in different cases

Assassinating other professionals’ characters

Accepting cases on contingency

Entering any advocacy role

18

Avoiding Ethical Conflicts

Maintain your principles

Never, ever, view yourself as an advocate for one side

Your side is the truth

Be honest

Protect testing information and procedures

Always be willing to share data

Always be willing to meet with the other side if permitted

Be empathetic will everyone

Avoid sympathetic identification

19

Unprincipled hired guns

Consistently testify for one side (without good reason)

Money trumps the truth

Tests are chosen based on bias (15 Item, TOMM, MCMI, NEOPI-R)

Only supportive data is cited or mentioned

Are concerned about the attorney’s favor

Won’t answer direct questions on cross

Are a blight on our profession and the justice system

20

Principled hired guns

Are pains to work with (“It’s not my problem”)

Prepare well

Answer questions truthfully

Consider all the data

Avoid sympathetic identification with anyone

Will share information with anyone, anytime, anywhere if permissible (including raw test data)

Say “I don’t know” if they don’t

Include both confirmatory and contradictory information in their reports

Are always busy

21

Principled Report Writing

Be timely with your reports

Be willing to write a report for both sides and the court, if requested

Agree on report format, and stick to it

Be willing to alter your reports or produce an addendum if you made an error

Avoid altering conclusions

Include appropriate information; don’t include inappropriate information

Provide both confirmatory and contradictory evidence

Offer firm conclusions whenever possible, and don’t change them

22

Forming and explaining conclusions

Conclusion: Mr. A represents a low risk for future sexual violence

Information in support: Mr. A has no prior convictions, no history of nonsexual violence, no history of stranger victims, no history of unrelated victims, no history of male victims, has been married for 28 years, is over the age of 25, has no serious mental illness, and is presently cooperating with treatment

Negative information: Mr. A has a substance abuse problem, has a history of a serious head injury, and runs a hobby store where children are often present

STATIC – 99 calculations show that he is a low risk for future offending

23

Forming and explaining conclusions

Conclusion: Mr. B is not fit for duty

Negative information: Mr. B has worked at his job successfully for the past 16 years, he has several certifications, he has a college degree in the field, and he is very motivated to do a good job. He has been devastated by his employer’s suspension of him

Positive information: Mr. B achieved a scaled score of 62 on the Wechsler Memory Scale Delayed Memory Index, was unable to achieve any categories on the Wisconsin Card Sort, and IQ testing suggests a 10 point decline. Family report severe day-to-day memory difficulties. He has early Alzheimer’s disease, and will only get worse with time.

24

Forming and explaining conclusions

Conclusion: Mr. C was not able to premeditate the killing of his stepson.

Negative information: He has average IQ, is college-educated, is normally capable of good reasoning and planning skills, and the day prior to the offense had remarked to his work associates that he “wanted to kill” his stepson.

Positive information: At the time of the offense, Mr. C had consumed half a fifth of vodka in less than 2 hours’ time, was enraged to learn that his stepson had wrecked his vehicle, and had been struck three times in the head by his stepson with a hammer

25

Conclusions

There is nothing inherently evil or mercenary about forensic consulting or the justice system

The justice system needs us

Biased experts are a real problem

The law and psychology speak different languages; if you choose to be a forensic consultant, you have to learn both

Delineate roles openly and formally whenever necessary

Whatever role you find yourself playing in the forensic world, stick by your principles, and all will be well

Forensic Controversy:Expert TestimonyTHE ‘ULTIMATE ISSUE’ ISSUE

26

27

Julie A. Gallagher, Psy.D. ABPPBoard Certified in Forensic Psychology

dr.julie.gallagher@gmail.com

Forensic Controversy:Expert TestimonyThe ‘Ultimate Issue’ Issue

28

What is an Ultimate Opinion?

Levels of Inference

1. Relationship of your clinical formulation or diagnosis to the legally relevant behavior

2. Elements of the ultimate legal issue (penultimate opinion)

3. Ultimate legal issue Embraces society’s values & moral judgments

ABA Criminal Justice Standard  7-3.9:

The expert witness should not express, or be permitted to express, an opinion on any question requiring a conclusion of law or a moral or social value judgment properly reserved to the court or the jury.

29

What is the standard of practice?

Most legal and psychological commentators are against giving ultimate opinions Morse (1978)

Heilbrun (2001)

Grisso (2003)

Melton et al. (2007)

Specialty Guidelines neither endorse nor prohibit

Borum & Grisso (1995) survey: Only 20% of those surveyed thought ultimate opinions did not belong in

criminal forensic reports

30Federal Rules of Evidence

Rule 704

a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

31Tennessee Rules of Evidence

Rule 704

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

T.C.A. § 39-11-501: “No expert witness may testify as to whether the defendant was or was not insane.”

32

Argument Against

“Even if a court permits such an opinion to be admitted as a matter of law, it should not be offered as a matter of professional ethics because of the explicit or implicit misrepresentation of the limits of expertise involved when a clinician acting as an expert witness gives a legal opinion in the guise of mental health knowledge.” (Melton et. al. 2007)

33

Argument Against

APA Ethics Code Principle A: Beneficence and Nonmaleficence

Forensic Specialty Guidelines 11.02 Differentiating Observations, Inferences, and Conclusions

In their communications, forensic practitioners strive to distinguish observations, inferences, and conclusions.  Forensic practitioners are encouraged to explain the relationship between their expert opinions and the legal issues and facts of the case at hand.

34

Argument For

Research indicates that most judges and attorneys prefer conclusory testimony

Rogers & Ewing (1989 & 2003) – unintended consequences to avoiding ultimate opinions

Obfuscates the expert’s data

Results in expert testimony that is too broad and not relevant to the legal issue

Makes cross-examination more difficult

Provides greater opportunity for attorneys to distort testimony

Loss of the distinction between clear cut cases and borderline ones

35

Levels of Inference

Examples from Clark v. Arizona:

1. Mr. Clark believed that the police officers were aliens and the only way to stop them was with bullets. Thus he did not understand that he was shooting a human being.

2. Mr. Clark was suffering from a severe mental disease and could not appreciate the wrongfulness of his conduct.

3. Mr. Clark was insane at the time of the crime.

36

What if it is demanded?

“It should be described as a legal, moral or common-sense judgment, not a psychological one.” (Melton et al)

37My ultimate opinion on the ultimate opinion…

Whatever form of opinion statement you use, you should clearly describe:

1. The data on which your opinion is based

2. The logical inferences that link your data to your opinion

Always show your work

38

Being an Effective Expert Witness

PAMELA AUBLE, PH.D.

39

Perceptions of Experts

Jurors often see lay witnesses as more credible than experts

Demeaning statements regarding mental health experts by attorneys and judges

Experts for sale (“hired guns”) Experts as biased (“partisans, advocates”) Experts as advocating junk science (“voodoo

psychobabble”)

40

What makes an expert believable?

Character Credibility factors

Nice Person

Efficacy Poise and confidence

Extraversion

Communication style

Only Character influenced juror decisions

41

Demeanor

DressPosture and body languageDo not just look at questionerNever show angerGentle and rare humor

42

Communication

Use of jargonAudio visual aidsSaying you don’t knowThoughtful responses

43

Preparation

Review your fileRelevant literatureOrganize your file

44

Direct examination

Meet or talk with the attorney who is doing your examination

Watch out for undue influence Limits of testimony Ensure understanding of relevant legal issues

and their application Communicating qualifications

45

Cross examination

Teaching metaphorPacing responsesHonesty and responsivenessThis is not about “winning”Dealing with personal attacks

46

Response techniques

Discussed by Stanley Brodsky, Ph.D.

Admit-deny techniquePush-pull techniqueSilence

47

Mock Court Appearance

MARK PHILLIPS, PH.D.

MIKE ENGLE, J.D.

SHANNON WALKER, J.D.