Dueling experts: Farcical spectacle that should be abolished?

Dueling psychiatric experts are an appalling farce and "a travesty of the profession and the law," according to an op-ed in yesterday's Boston Globe.

The opinion piece comes in the wake of the high-profile sanity trial of Christian Karl Gerhartsreiter (GAYR'-hahrtz-ry-tur), a German con artist who used a string of fake identities (including "Clark Rockefeller") to establish himself in wealthy circles in New York, Boston and Los Angeles. Last month, a jury rejected the defense theory of insanity and convicted him in the kidnapping of his 7-year-old daughter. He was sentenced to four to five years in prison.

Psychiatrist Stephen Bergman (who writes fictional parodies of psychiatry under the pen name Samuel Shem) critiqued the various experts for, respectively:

• charging too much money (one expert got $10,000, which ain't a whole lot these days)
• giving opinions on TV ahead of the trial
• spending only 2.5 hours with Gerhartsreiter
• not having prior experience testifying in court

The prosecution's expert, psychiatrist James Chu, diagnosed narcissism and sociopathy. He testified that Gerhartsreiter exaggerated his symptoms and knew what he was doing was wrong.

Two defense experts, forensic psychologist Catherine T.J. Howe and forensic psychiatrist Keith Ablow, a Fox News commentator, both testified that Gerhartsreiter suffered from delusional disorder (grandiose type) and narcissistic personality disorder, and was insane when he fled to Baltimore with his daughter during a custody dispute.

Bergman saved most of his vitriol for the DSM diagnostic enterprise, which is so tainted by profiteering and bias that a "circus atmosphere" is almost inevitable when it is brought into court:

"The lucrative link between a diagnosis and a drug to treat it, when diagnosis itself is culture-bound and often subjective, pollutes the impartiality of the 'Diagnostic and Statistical Manual.' … If psychiatric diagnoses and treatments have an element of fuzziness, how could doctors paid by one side or the other not come up with a diagnosis wanted by their employer?"

His solution?

Do away with experts that are paid by either side. Instead, have a neutral panel whose opinions are binding.

Bergman makes some legitimate points, especially about how flaws in the system of psychiatric diagnosis impact forensic cases. (See my new article on this topic HERE.) And, some of his criticisms of these particular experts may be legitimate (although, ironically, he got their roles backwards*). Indeed, the defense appeal argues that the government's expert was unqualified and applied the wrong legal standard for criminal responsibility.

But, overall, Bergman misses the forest for the trees.

The adversarial system entitles each side to present its best case in court. To foreclose that option just because experts sometimes differ would be fundamentally unfair. After all, as a colleague of mine put it, disagreements are not unique to psychiatry: "Engineers routinely disagree in court over the cause of a collapsed bridge, just as chemists disagree in court over the nature of a substance."

And just because they disagree, that doesn't mean that the experts are dishonest or lack integrity, as Bergman implies.

Unfortunately, high-profile insanity trials like this one skew the perceptions of the public and pundits like Bergman. In reality, insanity (which varies by jurisdiction but generally requires that the defendant did not know the difference between right and wrong) is rarely invoked as a defense, and is even more rarely successful. One eight-state study found that the defense was used in less than 1% of cases, and was successful only about one-fourth of the time. In 90% of the successful cases, the offender had been psychiatrically diagnosed prior to the crime.

Even when the defense is invoked, the "dueling experts" phenomenon is rarer than people think. The vast majority of insanity cases are resolved behind the scenes because the experts for both sides are in substantial agreement. In such cases, a trial -- with its attendant publicity -- never takes place. (See Before and After Hinckley: Evaluating Insanity Defense Reform.)

Another public misconception is that successful use of the insanity defense allows people to "get off" for the crime. In reality, most insanity acquittees are sent to locked state hospitals that look very much like prisons. They often spend more time locked up than if they had been convicted of their crime.

Bottom line: A defendant's right to the best possible defense should not be foreclosed just because of errors or hype in the rare celebrity case.

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* Bergman wrote: “For the prosecution: one psychiatrist, famous from Fox TV and psychiatric thrillers, was paid $10,000 for his expertise as part of an 'insanity defense,' testimony that was challenged by his offering opinions about Rockefeller on TV in advance of the trial; a prosecution psychologist agreed with his diagnosis, basically of a narcissistic character who was 'delusional' -- that is, insane. For the defense: a psychiatrist who had seen the accused once for 2 1/2 hours and had never before testified in court came up with the diagnosis of narcissism and sociopathy -- that is, not insane." In reality, the two experts he said were prosecution witnesses were actually defense-retained, and the expert he labeled as "for the defense" was actually the prosecution's.

Diagnostic reification in court

Good psychologists think in shades of gray. But the inside of a courtroom is painted black and white. One side wins, the other loses. Here, I discuss an ethical dilemma posed by this disjuncture between scientific uncertainty and the law's pull for absolutes. This dilemma concerns diagnostic labeling in court.

So begins my new "Ethics Corner" column in the July/August issue of the California Psychologist, available HERE.

Experts must be effective teachers

In my years as a legal affairs reporter, I developed a lasting respect for jurors and their decision-making process. People who take the time and energy to perform their civic duty are earnest in wanting to do the right thing. Increasingly, they are sophisticated and educated consumers who are innately curious about the topics at hand. Frequently, however, they are turned off by expert witnesses, who may resemble one of the following:

1. Ivory Tower: arrogant and condescending
2. Swordsman: combative, defensive, hostile, nitpicky
3. Waffler: uncertain and inconsistent
4. Automaton: stiff, robotic, confusing, unintelligible
5. Salesman: slick and overzealous

"Under all of these negative terms," advises trial consultant Richard Gabriel, "lies one fundamental problem: the lawyer and the witness did not have the intention of truly communicating with today’s jury."

The solution? Understand jurors’ innate skepticism and boredom, and become an effective teacher, "the translator for the jury in their journey into a foreign land." Writing in the current issue of The Jury Expert, Gabriel says the expert witness must be both understandable and relevant. How?

• Good teachers break down complex topics into understandable language, without being condescending.

• Good teachers anticipate questions. They "make sure they answer those questions, no matter how basic or obvious they seem."

• Good teachers understand that students have different learning styles, and they use "a mixture of tools to convey their information."

• Good teachers display passion. "Aside from a purely professional or academic interest, experts who resonate with jurors seem to have a personal connection that drives them to a particular level of excellence in their chosen field."

• Good teachers narrate stories. They "know that even the driest subjects can be made interesting by highlighting the conflict, the characters, the action, or the environment within the story."

The full article, "Redefining Credibility: Turning Expert Witnesses into Teachers," which includes a lot of practical tips, is online HERE. Author Richard Gabriel is president of Decision Analysis trial consulting firm and co-author of Jury Selection: Strategy and Science.

Photo credit: Xin Le 88's portrait of her tutor (Creative Commons license)

Can 'gatekeeper effect' bolster weak opinions?

The much ballyhooed Daubert decision of 1993 was intended to minimize the effect of so-called "junk science" in the courtroom. ("Junk science," by the way, was a term popularized by the book Galileo's Revenge, part of an orchestrated corporate attack on class action litigation, but that's a story for another day.) But Daubert may be having a paradoxical effect instead, of lending greater credibility to expert witness opinions.

That is the premise of the lead article in Psychology, Public Policy and Law, by Nick Schweitzer and Michael J. Saks of the Law and Social Psychology Research Group at Arizona State University.

The "gatekeeper effect" is the label being given to this phenomenon, of jurors giving extra weight to scientific evidence just because it has been vetted by judges.

Remember that formal rules of evidence are aimed at excluding improper evidence from jurors' consideration. And under the U.S. Supreme Court's ruling in Daubert, judges have become more and more responsible for filtering evidence prior to its admission.

Two experiments tested whether mock jurors (as usual, university undergrads rather than real-life jurors or eligible jurors) were more persuaded by evidence when they thought a judge had filtered it. The findings: A key predictor of how much stock the jurors put in scientific evidence was whether they thought a judge had deemed it acceptable.

Why is this potentially problematic? Judges, as many of us know, are not always well prepared to serve as filterers of scientific evidence. Some of them do not do it well. Also, in many jurisdictions, Daubert is not the law, so jurors may be assuming incorrectly that the evidence they hear has passed through a filtering system.

Concludes the article, "When judges allow expert testimony to reach the jury, they are implicitly lending credence to the testimony, increasing its persuasiveness. This tips the scales toward the party offering the expert witness, perhaps affecting the jury's verdict. Ironically, a landmark Supreme Court decision motivated in large part by a desire to shield jurors from 'junk science' could serve to heighten the impact of false or misleading scientific evidence when judges allow it through the courtroom gates."

I find it a bit troubling that jurors may be persuaded by expert testimony that is false, misleading, or scientifically weak, based on incorrect assumptions about the process. I don't, however, find it too terribly surprising.

The article, "The gatekeeper effect: The impact of judges' admissibility decisions on the persuasiveness of expert testimony," is available upon request from lead author N.J. Schweitzer.

Forensic Training Institute – April 16

Diagnostic Controversies In Forensic Practice

For those of you in or near California, it's not too late to register for this full-day training workshop coming up in just three weeks. It is presented by yours truly and Craig Lareau, JD, PhD, ABPP, who has just written an excellent chapter on the DSM-IV for the upcoming 6th edition of the classic Faust (Ziskin) reference work, Coping with Psychiatric and Psychological Testimony.

We are gearing this toward advanced-level forensic practitioners. Topics include:

• The DSM in court
• Antisocial Personality Disorder and Psychopathy
• Diagnosis in Sexually Violent Predator (SVP) proceedings
• Posttraumatic Stress Disorder

The all-day (9:00-4:00) training is a preconvention special hosted by the California Psychological Association in Oakland. It provides 6 units of CE credits, and costs $175 for CPA members and $225 for non-members.

Click HERE for more information and to register online.

"No Lie" fMRI to be introduced in court?

Last week, I blogged about neuroscientists' concerns about fMRI brain imaging. Critics say its scientific reliability and validity is far from established, and that if it was introduced in court, its colorful graphics might mislead jurors and judges and derail justice.

Just days later, the good folks over at the Stanford Center for Law and the Biosciences have learned of a pending case in California in which the "No Lie MRI" (I kid you not!) may be introduced in court to establish that a parent did not molest his child.

The case is a child protection hearing in juvenile court, so the records are sealed. The issue is whether a child should be removed from the home due to alleged sexual abuse by a parent, explains blogger Emily Murphy, a Stanford Law School fellow.

According to Murphy, a hearing is imminent on whether the fMri-based "truth verification" technique will be allowed in court. Under California's Kelly-Frye standard for evidence admissibility (which is different from the federal Daubert test), a scientific technique cannot be introduced in court unless it is generally accepted within "the relevant scientific community." The method's reliability must also be established, generally by a properly qualified expert.

If you read my blog post last week, you may be wondering how a novel technique like the fMRI could possibly meet that "general acceptance" standard.

Well, according to Ms. Murphy, the defense will argue that the "relevant scientific community" is a narrow group consisting only of scientists who research and develop fMRI-based lie detection. Tricky, huh? As Ms. Murphy comments:

Limiting the "relevant community" to only those who research and develop fMRI based lie detection is without merit, if only because such a definition precludes effective or sufficient peer-review. Indeed, it is arguable such a narrowly-defined community has a strong incentive to exaggerate its claims of accuracy and overlook unanswered questions for financial gain if such techniques are "legally admissible."

The few practitioners who research and develop fMRI-based deception detection are not the only qualified people to comment on the accuracy and validity of the technique. Statisticians familiar with Bayesian analysis, cognitive neuroscientists familiar with technical and analytical constraints, and researchers working to elucidate the neural basis of memory, decision-making, and social behavior should all make up the "relevant scientific community" for such a complex and as-yet poorly characterized technology. Further, I suspect the community of peer-reviewers that have reviewed the articles being proffered in support of the evidence of fMRI testing on deception is probably a useful proxy for the legally relevant scientific community, and extends well beyond the handful of researchers working directly on fMRI-based deception detection.

As to Murphy's last hope -- that journal peer reviewers could stand in for the legally relevant scientific community -- maybe that would help, and maybe it wouldn't. Remember, as I pointed out in last week's post, researchers at UC San Diego have found that the publishers of leading scientific journals are just as wowed by fMRI technology as everyone else, and they are uncritically promoting studies of questionable statistical merit.

To commercial ventures like No Lie MRI in California and its competitor, Cephos Corporation in Massachusetts, profit is the bottom line. Despite the controversy surrounding the reliability and validity of the lie detection technique, they are aggressively marketing the tools to clients and attempting to get them accepted in court.

Indeed, over at New York University's Scienceline, the president and chief executive of the eight-person start-up Cephos Corporation says he believes it it has a "strong possibility of being introduced as evidence" in court within the next couple of years.

Maybe sooner, depending upon the outcome of this case.

POSTSCRIPT: After opponents to the fMRI's introduction mounted a vigorous opposition and prepared to do battle at an evidentiary hearing, "the proponents of the evidence withdrew their request to have it admitted, thus ending the issue in [the] case," according to a March 25 letter from the San Diego County Counsel's Juvenile Dependency Division. Although fMRI proponents bowed out of this battle, we are sure to see more attempts to prematurely introduce brain scans as evidence in court in the coming months and years.

Postscript thanks to Phil Cave, Court-Martial Trial Practice

My previous post, with lots of links to critical research, is HERE. The image, above, is supposedly an excerpt from the actual case report.

New book review in California Lawyer

My review of Charles Patrick Ewing's Trials of a Forensic Psychologist is now available online at the California Lawyer website. Here is how the review begins:

Billy Shrubsall was the top student at his small Niagara Falls, New York, high school. Thus, it came as a surprise when he didn't show up to give the 1988 valedictory address. But he had good reason. Just hours earlier, the 17-year-old had clubbed his domineering mother to death.

To explain Billy's horrific crime, his attorney advanced a theory of "psychological self-defense." The attorney retained forensic psychologist and attorney Charles Patrick Ewing, who had recently advanced the novel doctrine in his 1987 book Battered Women Who Kill (Lexington Books). Ewing's sympathetic testimony paved the way for a plea bargain under which Shrubsall served just 16 months in prison. A model prisoner and parolee, Shrubsall went on to graduate from an Ivy League university and become a Wall Street stock analyst.

But all was not as rosy as it appeared. The ostensibly rehabilitated and upright citizen still had a dark side as a vicious misogynist. He had been assaulting girls since his mid-teens, and a decade after his mother's death he brutally assaulted at least three women in Halifax, Nova Scotia. In one assault eerily reminiscent of his mother's beating death, Shrubsall clubbed a female store clerk with a baseball bat, shattering her skull.

Shrubsall's case is one of more than 600 in which Ewing has testified as an expert. But that case still haunts him, as he states in his latest book, Trials of a Forensic Psychologist: "[A]fter decades of working with the victims of violence and sexual abuse, I know all too well the awful harm Shrubsall did to the women he later victimized ... to this day when I testify as an expert, I am often questioned about my role in this case."

The review continues HERE.

Upcoming forensic training workshops

Forensic Training Institute - Diagnostic Controversies
April 16 (CA)

Your host (Karen Franklin) and colleague Craig Lareau will present this all-day training at the California Psychological Association convention in Oakland, California. Geared toward advanced-level forensic practitioners, we will focus on current diagnostic controversies in the field including those surrounding Antisocial Personality Disorder, Psychopathy, the sexual disorders as used in Sexually Violent Predator (SVP) proceedings, and Posttraumatic Stress Disorder.

Click HERE for more information and online registration.

Assessing Malingering and Miranda Rights Waiver
April 24 (VA)

If you want to get away from the cold and visit a pretty place, you might want to check out this excellent training down in Charlottesville, Virginia. Richard Rogers, whom most of you all know as a leading forensic psychology practitioner and scholar, is presenting this full-day training sponsored by the always-excellent Institute of Law, Psychiatry and Public Policy (ILPP) at the University of Virginia. Dr. Rogers will be presenting one-half day on malingering (the topic of his classic reference text) and one-half day on evaluation of Miranda Rights, another of his specialty areas.

Click HERE for more information and to register.

Assessing Violence Risk in Community Settings
May 22 (VA)

This is a chance to hear from John Monahan, probably the foremost expert on this topic. Monahan has authored or edited 15 books and written hundreds of articles; his work on violence risk is frequently cited by courts, including the California Supreme Court in the landmark Tarasoff v. Regents and the United States Supreme Court in Barefoot v. Estelle, in which he was referred to as "the leading thinker on the issue" of violence risk assessment. This training is also sponsored by the Institute of Law, Psychiatry and Public Policy (ILPP) at the University of Virginia.

Click HERE for information and registration.

Latest on controversial "Fake Bad Scale"

I wanted to alert my psychologist readers to the latest in the controversy over the "Fake Bad Scale" of the Minnesota Multiphasic Personality Inventory, a topic I have blogged about previously (HERE). If you are planning to use this Scale, you should be aware of this article and the others on both sides of the controversy.

The Fake Bad Scale (FBS) was developed to identify malingering of emotional distress among claimants in personal injury cases. It was recently added to MMPI-2 scoring materials, resulting in its widespread dissemination to clinicians who conduct psychological evaluations.

The latest article, in the interesting new journal Psychological Injury & Law, summarizes concerns about the Scale's reliability, validity, and potential bias against women, trauma victims, and people with disabilities.

The article concludes that the scale is not sufficiently reliable or valid to be used in court:

"Based on a review and a careful analysis of a large amount of published FBS research, the FBS does not appear to be a sufficiently reliable or valid test for measuring 'faking bad,' nor should it be used to impute the motivation to malinger in those reaching its variable and imprecise cutting scores. We agree with the conclusions of the three judges in Florida that the FBS does not meet the Frye standards of being scientifically sound and generally accepted in the field, and that expert testimony based on the scale should be excluded from consideration in court. The samples used to develop the FBS are not broadly representative of the populations evaluated by the MMPI-2, nor are its criteria used to define malingering objective and replicable. There is insufficient evidence of its psychometric reliability or validity, and there is no consensus about appropriate cut-off scores or use of norms."

The article is "Potential for Bias in MMPI-2 Assessments Using the Fake Bad Scale (FBS)." The Abstract and a "free preview" are online HERE; the full article requires a subscription but can be requested directly from the first author, James Butcher. Butcher and co-authors Carlton Gass, Edward Cumella, Zina Kally and Carolyn Williams present just one side of the heated controversy; a rebuttal is scheduled for publication in an upcoming issue of the journal, followed by other pro and con articles.

Related blog resources:

New MMPI scale invalid as forensic lie detector, courts rule: Injured plaintiffs falsely branded malingerers? (March 5, 2008) – contains links and citations to other sources

"Fake Bad Scale": Lawyers advocate exposing in court (May 20, 2008)

A list of FBS references and statement from the test's publisher is HERE

Hat tip: Ken Pope

Veteran with PTSD won’t do time for robberies

Last month I wrote about the potentially landmark case in which an Army veteran was found insane in the armed robbery of a pharmacy. Sargent Binkley said he robbed that pharmacy and one other of painkillers to cope with his symptoms of post-traumatic stress disorder.

Yesterday, Sargent pleaded no contest in a separate San Francisco Peninsula robbery committed during the same time period, in exchange for a promise of probation. He had faced at least 12 years in prison.

Binkley cannot be formally sentenced until state hospital doctors find him sane and no longer dangerous. The ability of the white West Point graduate and former Eagle Scout to garner sympathy among jurors and prosecutors bodes well for his stay at the hospital. If I had to bet, I would predict state hospital psychiatrists will agree to a quick release.

Armed robbers are rarely found insane when their crimes appear rational, goal-directed, and premeditated. Additionally, California law does not allow for an insanity verdict based on addiction alone.

The defense had argued that Binkley was traumatized by two events -- guarding a mass grave in Bosnia and shooting a teenager during a Honduran drug raid. Prosecutors countered that Binkley exaggerated his military service and that his claim of involvement in drug interdiction in Honduras was pure fantasy. Further, they said, his addiction to pain pills stemmed not from military-related activities but from a hip injury incurred while he was running away from a production assistant for the Fox reality TV show "Temptation Island" after a bar fight.

The trial featured dueling psychiatric experts who agreed that Binkley suffers from PTSD, but disagreed on whether his symptoms were of sufficient magnitude as to render him insane, or incapable of knowing right from wrong at the time of the robberies.

The case comes amid growing interest in the plight of veterans returning from the wars in Iraq and Afghanistan. Military leaders acknowledge that multiple deployments in particular put a severe strain soldiers and their families, and can increase the likelihood of domestic violence, alcohol abuse, and symptoms of post-traumatic stress disorder.

To handle a wave of arrests of soldiers, special courts for veterans are opening in several states, including Arizona.

Related stories:

Insanity verdict for soldier with PTSD: Case heralded as landmark for traumatized veterans (blog post, Jan. 14, 2009)

Ex-Army captain won't do time for two holdups (San Francisco Chronicle, Feb. 19, 2009)

Focus on violence by returning GIs (New York Times, Jan. 2, 2009)

New court is sought to aid vets charged with crimes (Arizona Republic, Jan. 6, 2009)

Reaching out to returning vets (Wisconsin Law Journal, Feb. 6, 2009 – subscription required)

9th circuit upholds expert witness exclusion

Proposed testimony on murder victim's suicide risk

Jeffrey Moses' defense against the accusation that he murdered his wife Jennifer was that she shot herself to death. As evidence, he wanted to call Dr. Lawrence Wilson, a forensic psychiatrist and expert on suicide.

At a pretrial evidentiary hearing, Dr. Wilson said he would testify about Jennifer's depression and substance abuse. To counter the testimony of government witnesses who said she did not appear visibly depressed, he was prepared to opine that someone who is severely depressed can mask such feelings from friends and co-workers.

As law professor Colin Marshall summarized it over at the EvidenceProf Blog:

Dr. Wilson was also prepared to testify that several risk factors, such as depression, substance abuse, and access to firearms, heighten the risk of suicide. Additionally, he was prepared to testify that lay persons do not fully understand the implications of major depression and the connection between these various risk factors and suicide. Although Dr. Wilson was not willing to opine that Jennifer Moses committed suicide, he was prepared to testify that Jennifer Moses fell "into a group of people with an extreme number of severe and significant risk factors for suicide" and that "she continued to suffer [from] major depression...that continued to the time of her death."

The trial court excluded Dr. Wilson's testimony on the grounds that much of it was within the common knowledge of potential jurors, and was cumulative in light of other evidence that Jennifer did indeed suffer from depression. Also, Dr. Wilson's testimony that 15 percent of people with depression ultimately kill themselves was too prejudicial and potentially confusing to a jury, the trial court ruled.

The Washington state case is Moses v. Payne, 2008 WL 4192031 (9th Cir. 2008), available online here. The analysis by Professor Colin Miller from the John Marshall School of Law is here.

Prosecuting Internet-based sex crimes

Can expert witnesses play a role?

The following facts come from a court case much like several that I have been involved in:

Dennis Joseph is a 40-year-old married man with a 6-year-old daughter. He spends a lot of time on the Internet. Indeed, one might say he is addicted. Once upon a time, he entered the online chat room "I Love Older Men," and began chatting with "Teen2Hot4U."

"Teen2Hot4U" identified herself as "Lorie," a 13-year-old girl. Lori eventually introduced him to her friend Julie, also 13. Eventually, after lots of back-and-forth chatting, Joseph and Julie arranged to meet.

Joseph later said he was not planning to have sex with an underage girl, he just wanted to see if Julie was a real teen or an adult woman engaged in role-playing.

He got his answer when he showed up at the Franklin Street Station Cafe in Manhattan for the meeting. Instead of a teenage girl, the real Julie was a grown man by the name of Austin Berglas who happened to be an FBI agent and who promptly arrested him. "Teen2Hot4U,"meanwhile, turned out to be a 55-year-old crusader named Stephanie Good who made her reputation surfing the Internet looking for sexual predators to report to Berglas; she even wrote a book on her exploits, grandiosely titled "Exposed: The Harrowing Story of a Mother's Undercover Work with the FBI to Save Children from Internet Sex Predators."

At his federal district court trial in New York, Joseph said he had thought all along that Lorie and Julie were probably adults, based on their sexual knowledge, but he played along as part of his practice of online fantasy role-playing.

His wife backed him up. She testified that Joseph liked muscular woman and was addicted to sexual fantasy role-playing. He even belonged to an Internet group called "Muscleteens," she testified, that solicits pictures of young female bodybuilders.

In his defense, Joseph had also planned to call an expert witness, Dr. James Herriot. Not the James Herriot of veterinary fame, but a professor at the Institute of Advanced Human Sexuality in San Francisco who has researched sexual communication on the Internet. Dr. Herriot would have testified about the fantasy role-playing that takes place in Internet chat rooms.

The trial judge barred Herriot's expert testimony. Joseph was convicted and sentenced to eight years in federal prison. This week, the Second Circuit Court of Appeals overturned the conviction. Although the reversal was on unrelated grounds, the appellate opinion includes a lengthy plea for the judge to reconsider that exclusionary ruling.

"Although the admission or exclusion of expert testimony is [at] the discretion of the court, we urge the District Court to give a more thorough consideration to the defendant's claim to present Dr. Herriot's testimony…. Dr. Herriot's field of study and experience qualified him to offer relevant testimony…. Dr. Herriot's opinions appear to be highly likely to assist the jury to 'understand the evidence.' … Although some jurors may have familiarity with Internet messaging, it is unlikely that the average juror is familiar with the role-playing activity that Dr. Herriot was prepared to explain in the specific context of sexually oriented conversation in cyberspace…. Obviously a jury would not have to accept Joseph's claim that he planned only to meet 'Julie' to learn who she was and that he lacked any intention to engage in sexual conduct with her, but the frequent occurrence of such 'de-masking' of chat-room participants might provide support for the defense."

In a case similar to Joseph's, Dr. Herriot was allowed to testify and the defendant was acquitted, the appellate ruling noted. (That case is U.S. v. Wragg, 01 Cr. 6107.)

The ruling, United States v. Joseph, 2008 WL 4137900 (2nd Cir. 2008), is online here.

Hat tip: Colin Miller (EvidenceProf Blog). Photo credit: Kim Dench ("Temple Dancer"), Creative Commons License.

Of child molestation and crystal balls

How much can a forensic psychologist really tell?

Defense attorneys regularly telephone me seeking an expert to testify that their client does not "fit the profile" of a child molester.

"What profile?" I want to ask. Men who molest children have no special profile. They come in all shapes and sizes.

After explaining this, I always pass on such cases.

Some forensic psychologists disagree. They think there is a profile, or that we can reliably determine the veracity of children who say they were abused.

Forensic psychologist excluded

In Louisiana, after the courthouse reopened following Hurricane Gustav, one such expert was slated to testify in the high-profile trial of church pastor Louis D. Lamonica.

The defense planned to call the forensic psychologist to tell jurors how to judge the veracity of abuse allegations made by children. No can do, ruled Judge Zoey Waguespack; the children's veracity is up to the jury to decide. Prosecutors had cited Supreme Court precedents to support that position.

The jury began deliberating yesterday. They must decide whether Lamonica molested his two young sons or falsely confessed, as the defense maintains, because he was being controlled by a self-proclaimed prophet who had tortured him, deprived him of sleep, and forced him to wear a dress and two rubber snakes.

The jurors' job won't be easy. Lamonica's sons - both now adults - testified that they were never abused. They, too, allege their confessions were the result of control by self-proclaimed prophet Lois Mowbray, who was arrested but never charged in the case. The boys testified that Mowbray controlled their mother and had her coerce the boys into accusing their father.

The bizarre case harkens back to the largely discredited satanic ritual abuse hysteria of the 1980s. In his tape-recorded confession, which was played for jurors, Lamonica talked about a child-sex ring at his Hosanna Church that practiced satanic cult rituals. Former church members also testified that the church had devolved from an established church into a Christian cult where worshippers publicly confessed and vomited to cast out the demons of sin. The allegations rocked the small town of Ponchatoula, about 40 miles northwest of New Orleans.

Ironically, the case broke when Lamonica himself walked into the local sheriff's station back in 2005 and began babbling about having molested children, taught them to have sex with each other and with a dog, and poured cat blood over the bodies of his young victims. At his trial, Lamonica testified that was all lies.

Unfortunately, the jurors won't have much in the way of science to guide them in choosing which of Lamonica's two diametrically opposed stories to believe.

But wait! High-tech mind reading in the works

While not in time to help Lamonica's jurors, scientists are feverishly working on new technologies to enable us to differentiate truth from lies. The science holds promise, they say, for identifying pedophiles based on their mental attitudes toward children.

Researchers tout the Implicit Association Test (IAT), developed by Harvard scholars to measure unconscious racism, as having the potential to sniff out pedophiles and even psychopathic murderers. (See Gray et al, 2003 and 2005.) A modified IAT called the Timed Antagonistic Response Alethiometer (TARA) can classify responders as liars or truth tellers based on the speed at which they classify sentences and "manipulate response incongruities," they claim. (See Gregg, 2007.) Other researchers have been working to adapt functional magnetic resonance imaging (fMRI) into a lie-detection tool, with mixed results. (See Ganis et al, 2003, and Iacono & Lykken, 1999.)

The current issue of Psychological Science presents an article summarizing this research and offering a new tweak, the autobiographical IAT (aIAT), which researchers boast "outperforms currently available lie-detection techniques."

The authors concede that this and other emergent technologies do "leave important neuroethical issues unresolved." (See Wolpe et al 2005.)

You don't say.

In the forensic realm, it seems particularly problematic to equate attitudes with behavior. After all, many more men lust after children and teens than go on to commit illegal sex acts against them.

The Psychological Science article is: "How to Accurately Detect Autobiographical Events," by Giuseppe Sartori, Sara Agosta, Cristina Zogmaister, Santo Davide Ferrara, & Umberto Castiello. The abstract is available online, and the full article can be requested from the first author.

The Lamonica story, from the Advocate in Baton Rouge, Louisiana, is here. You can search the newspaper's database using the keyword Lamonica for additional case coverage. A New York Times article on the original arrests is here. The Rick A. Ross Institute, which bills itself as a repository for information on cults, has much more on the Hosanna Church here.

A few of my prior related blog posts are:

• Why the next civil rights battle will be over the mind

• Forensic brain scanning: Online resources

• Using lie detectors to monitor sex offenders

• The evidence does not lie – or does it?
  

Scholarly articles referenced in this post are:

Ganis, G., Kosslyn, S.M., Stose, S., Thompson, W.L., & Yurgelun-Todd, D.A. (2003). Neural correlates of different types of deception. Cerebral Cortex, 13, 830–836.

Gray, N.S., Brown, A.S., MacCulloch, M.J., Smith, J., & Snowden, R.J. (2005). An implicit test of the associations between children and sex in pedophiles. Journal of Abnormal Psychology, 114, 304–308.

Gray, N.S., MacCulloch, M.J., Smith, J., Morris, M., & Snowden, R.J. (2003). Violence viewed by psychopathic murderers. Nature, 423, 497–498.

Gregg, A.I. (2007). When vying reveals lying: The Timed Antagonistic Response Alethiometer. Applied Cognitive Psychology, 21, 621–647.

Iacono, W.G., & Lykken, D.T. (1999). Update: The scientific status of research on polygraph techniques: The case against polygraph tests. In D.L. Faigman, D.H. Kaye, M.J. Saks, & J. Sanders (Eds.), Modern scientific evidence: The law and science of expert testimony (pp. 174–184). St. Paul, MN: West Publishing.

Wolpe, P.R., Foster, K.R., & Langleben, D.D. (2005). Emerging neurotechnologies for lie-detection: Promises and perils. The American Journal of Bioethics, 5 (2), 39–49.

Photo credits: ora mia and Josh Bancroft (Creative Commons license)

Underground ruling on underground rules

SVP practice alert

This post is mainly to alert those of you practicing in the SVP area. The decision is from California, but may have relevance in other jurisdictions.

First, the background:

We all know about statutes and case law. But what about all those little government agency regulations that guide the enforcement of the laws? How are they issued and enforced?

Well, it turns out that in California, there is an Administrative Procedure Act (APA) that very specifically defines these rules and regulations and how they are to be issued and enforced. Rules include any "regulation, order, or standard of general application" that a state agency adopts in order to "implement, interpret, or make specific the law enforced or administered by it." And before issuing or enforcing any such rule, a state agency must file it with the Secretary of State and have it formally adopted as a regulation.

Who regulates the regulator? In California, that's the job of the little-known Office of Administrative Law (OAL).

OK, so now you understand the process. And here's why I am writing about it:

State's SVP protocol in violation

This month, the Office of Administrative Law handed down a decision against California's Department of Mental Health (DMH), saying its internal manual for SVP evaluators is an illegal "underground regulation." That's the OAL's term for a rule that is issued or enforced without the required approval of the Secretary of State.

The OAL held that the 68-page "Clinical Evaluator Handbook and Standardized Assessment Protocol" violates the law because it requires psychologists and psychiatrists on the state's panel of experts "to evaluate persons in accordance with the [manual’s] protocol."

The 2007 manual "mandate[s] how the evaluation is conducted and how the results of the evaluation are presented," despite the fact that the DMH "does not have the authority to dictate or control the standards or clinical profession of psychology or psychology," the OAL ruled.

The DMH had argued that the protocol was not a regulation, but just a general guide to assist clinical evaluators in making "case-specific determination[s] using their education, experience, and expertise ... in the exercise of their independent professional clinical judgment." The OAL found this argument unconvincing, quoting the manual as saying it "specifies the questions that must be answered and formats to be used." The handbook specifies how to conduct the clinical interview, collect historical information, and perform an assessment of a person's risk for sex offense recidivism.

The case was brought by Michael St. Martin, a leading activist among the sex offenders being civilly detained at Coalinga State Hospital.

What does the ruling mean in practice?

Once the OAL identifies a governmental rule as an "underground regulation," the agency is prohibited from enforcing it.

There is no muscle behind the proclamation, however, in that the OAL does not impose sanctions.

The OAL does mention that attorneys may bring up the regulation's status as an issue in any subsequent litigation. That means defense attorneys will have a heyday with state SVP panelists, some of whom are earning a cool half-million dollars per year cranking out these evaluations. Prepare for cross-examination questions on whether the evaluation methodology has any scientific basis and whether it has been peer reviewed.

The full decision is here. Photo credit: Eole (Creative Commons license).

Psychologist may not testify, judge rules

A Vermont judge has ruled against allowing a psychologist to testify in a child pornography case aginst a prominent local man.

The defense had sought to call Thomas Powell to testify about two issues:

• Whether pamphlets found in the home of Stewart Read were pornographic, and

• Whether the boys pictured in the pamphlets were under the age of 16.

District Judge Karen Carroll said Powell did not have the expertise to testify about either topic. First, he is not a medical doctor so he cannot be an expert on the anatomy of boys, she ruled. Second, it is up to the jury to determine what constitutes pornography, following community standards.

"Why should the jury care what Tom Powell thinks is lewd?" Judge Carroll asked. She said the defense attorney was trying to have Powell "come in and give his opinion" rather than just state facts helpful to the jury.

Although laws vary somewhat by jurisdiction, in general professionals are only allowed to testify as "experts" if they possess specialized knowledge that is beyond the realm of laypeople and will assist the trier of fact (such as a jury or judge) to understand the evidence and/or decide an issue.

On the face of it, the judge’s opinion certainly appears sound.

The full article, in today’s Rutland Herald, is online here.

Opposing expert no safeguard against junk science

That's the conclusion of an interesting study in the current (August) issue of Law & Human Behavior. The researchers, criminology professor Lora Levett from the University of Florida and Margaret Bull Kovera, a prominent social psychologist and expert on eyewitness identification, found the following:

We tested whether an opposing expert is an effective method of educating jurors about scientific validity by manipulating the methodological quality of defense expert testimony and the type of opposing prosecution expert testimony (none, standard, addresses the other expert’s methodology) within the context of a written trial transcript. The presence of opposing expert testimony caused jurors to be skeptical of all expert testimony rather than sensitizing them to flaws in the other expert’s testimony. Jurors rendered more guilty verdicts when they heard opposing expert testimony than when opposing expert testimony was absent, regardless of whether the opposing testimony addressed the methodology of the original expert or the validity of the original expert’s testimony. Thus, contrary to the assumptions in the Supreme Court’s decision in Daubert, opposing expert testimony may not be an effective safeguard against junk science in the courtroom.

More guilty verdicts, hmm? That hasn't been my experience in the cases I've been involved in, but it's an interesting finding nonetheless.

The article is restricted to subscribers and purchasers, but you can get the abstract and a “free preview” (the first page) here.

UK forensic psych honored

Pioneer in study of police interrogation tactics

A British forensic psychologist who pioneered in the study of police interrogation tactics and helped to reform such practices in the UK and elsewhere has been honored with an international award.

The European Association of Psychology and Law honored Professor Ray Bull of the University of Leicester with a Lifetime contribution to Psychology and Law award.

In 1991, Dr. Bull was commissioned by the British Home Office to co-author the first draft of the Memorandum of Good Practice on Video Recorded Interviews with Child Witnesses for Criminal Proceedings. He went on to write the government's 2002 Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, Including Children. He has advised police forces in several countries on the interviewing of witnesses and suspects, and he has testified as an expert witness on this topic at a number of trials.

More information is online here.

"Hot tubbing": Counterbalance for expert partisanship?

Tomorrow's New York Times features a thought-provoking analysis by Adam Liptak of the problem of partisanship in the U.S. system of expert witnesses. Might the solution be "hot tubbing" - a new practice out of Australia?

"In U.S., Partisan Expert Witnesses Frustrate Many"
By Adam Liptak
New York Times, Aug. 12, 2008

Judge Denver D. Dillard was trying to decide whether a slow-witted Iowa man accused of acting as a drug mule was competent to stand trial. But the conclusions of the two psychologists who gave expert testimony in the case, Judge Dillard said, were “polar opposites.”

One expert, who had been testifying for defendants for 20 years, said the accused, Timothy M. Wilkins, was mentally retarded and did not understand what was happening to him. Mr. Wilkins’s verbal I.Q. was 58, the defense expert said.

The prosecution expert, who had testified for the state more than 200 times, said that Mr. Wilkins’s verbal I.Q. was 88, far above the usual cutoffs for mental retardation, and that he was perfectly competent to stand trial.

Judge Dillard, of the Johnson County District Court in Iowa City, did what American judges and juries often do after hearing from dueling experts: he threw up his hands. The two experts were biased in favor of the parties who employed them, the judge said, and they had given predictable testimony. “The two sides have canceled each other out,” Judge Dillard wrote in 2005, refusing to accept either expert’s conclusion and complaining that “no funding mechanism exists for the court to appoint an expert.”

In most of the rest of the world, expert witnesses are selected by judges and are meant to be neutral and independent. Many foreign lawyers have long questioned the American practice of allowing the parties to present testimony from experts they have chosen and paid....

Some major common-law countries are turning away from partisan experts. England and Australia have both adopted aggressive measures in recent years to address biased expert testimony....

Hot tubbing in Australia

In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues....

Australian judges have embraced hot tubbing. “You can feel the release of the tension which normally infects the evidence-gathering process,” Justice Peter McClellan of the Land and Environmental Court of New South Wales said in a speech on the practice. “Not confined to answering the question of the advocates,” he added, experts “are able to more effectively respond to the views of the other expert or experts.” ...

England has also recently instituted what Adrian Zuckerman, the author of a 2006 treatise there, called “radical measures” to address “the culture of confrontation that permeated the use of experts in litigation.” The measures included placing experts under the complete control of the court, requiring a single expert in many cases and encouraging cooperation among experts when the parties retain more than one. Experts are required to sign a statement saying their duty is to the court and not to the party paying their bills.

There are no signs of similar changes in the United States. “The American tendency is strictly the party-appointed expert,” said James Maxeiner, a professor of comparative law at the University of Baltimore. “There is this proprietary interest lawyers here have over lawsuits.”

American lawyers often interview many potential expert witnesses in search of ones who will bolster their case and then work closely with them in framing their testimony to be accessible and helpful. At a minimum, the process results in carefully tailored testimony. Some critics say it can also produce bias and ethical compromises....

The United States Supreme Court has expressed concerns about expert testimony, but it has addressed bias only indirectly, by requiring lower courts to tighten standards of admissibility and to reject what some call “junk science.”

The full article is here.

California: More sex offender commitment mess

I've written several posts (listed here) on various controversies surrounding Coalinga State Hospital, California's costly boondoggle for civilly committed sex offenders.

Here is the latest buzz. (I am hearing all of this third-hand and I haven’t seen it reported in any official sources, so take it for what it’s worth.)

Due to a severe shortage of staff, the hospital is operating at full capacity with only about 700-some out of a maximum of 1,500 patients. That means that if a patient goes to court, he cannot return "home" until a bed opens up. Since the "hospital" is really a long-term detention facility from which few people are released, this can take many months. Meanwhile, the sex offender is housed in a county jail's protective custody unit, which is much more restrictive than general population housing.

Worse, if a patient is called as a witness in a fellow patient's civil commitment proceeding, he too can expect to lose his bed. It is hard to find willing witnesses when they've got to be willing to go to jail for you, for an indefinite period of time.

I'm told that the hospital has about 700-some patients. It could hold 1,500 if it had a full staff. But despite an intensive campaign, recruiters have found only 900 people so far who are willing to work there, or about 55 percent of the 1,600 they need in order to run all of the units and programs.

Meanwhile, I'm hearing that the expert witness panel of the state Department of Mental Health is being disbanded. Less expensive staff psychologists are replacing the contractors, some of whom were earning upwards of $1 million per year. The massive earnings were becoming a focal point for defense attorneys during cross-examinations of state witnesses. I'm told that jurors' eyes practically popped out of their heads when they heard about the "boatloads" of money, as one expert described her earnings.

If anyone finds published news on these topics I would be grateful if you posted them in the Comments section, so others can access them.

An L.A. Times article on the beleaguered hospital is here.

Postscript: On Aug. 10, 2008, the L.A. Times published an expose on the massive earnings of state SVP evaluators. The article is here; my post on it is here.

Two new journals

Just what we all need – more journals!

Psychological Injury and Law

The first issue of Psychological Injury and Law has hit the news stands.

Well, not exactly. But it's hit the web, and articles in the premiere issue are available for free downloads without a subscription.

The journal bills itself as "a multidisciplinary forum for the dissemination of research articles and scholarly exchanges about issues pertaining to the interface of psychology and law in the area of trauma, injury, and their psychological impact."

Spearheading the new journal - and an associated new organization, the Association for Scientific Advancement in Psychological Injury and Law - is Gerald Young, a psychology professor at York University in Ontario and co-author of the text, Causality of Psychological Injury: Presenting Evidence in Court and similar texts.

Young and colleagues hope to promote research, guide the application of that research in forensic cases, and improve cross-disciplinary communication.

Topics of focus will include PTSD, chronic pain, traumatic brain injury, and malingering.

Articles in the first issue, available here for free download, include:

• Expert Testimony on Psychological Injury: Procedural and Evidentiary Issues

• Forensic Psychology, Psychological Injuries and the Law

• Psychological Injury and Law: Assumptions and Foundations, Controversies and Myths, Needed Directions

• Posttraumatic Stress Disorder: Current Concepts and Controversies

That final article, by Steven Taylor and Gordon Asmundson, provides a concise summary of PTSD research, with a focus on malingering in the forensic context.

Happy downloading!

The Jury Expert

Also new online is the American Society of Trial Consultants' The Jury Expert. Now in its second issue, the e-journal "features articles by academics, researchers, popular writers and speakers, and trial consultants. The focus is on practical tips for litigators and
on the accurate interpretation and translation of social sciences
theory into litigation practice."

The current issue includes articles on case themes, witness preparation, an overview of eyewitness research, tips for using RSS feeds, a new form of forensic animation, and the use of religion research in legal cases.

The Jury Expert will publish six times per year and - best of all - subscriptions are free.

Check it out here.