Mental health expert witnesses slammed in court

A pint-sized hired gun

Are accusations of bias on the rise?

Hired gun.
Charlatan.
Quack.
Hack.

It's every expert witness's worst nightmare. Vitriolic accusations of bias hurled at us on the witness stand, just because the cross-examining attorney doesn't like our opinion, or we have the audacity to charge for our services. (Have you heard of auto mechanics, plumbers or attorneys being called "whores" because they don't work for free?)

Unfortunately, it goes with the territory.

Now, a group of psychologists has tried to figure out just how big a part of the legal landscape accusations of bias against mental health expert witnesses are. The researchers scoured the LexisNexis legal database for insinuations of bias, with an eye to quantifying and categorizing the name-calling. In an article just published online in the journal Psychological Services, prominent forensic psychologists John Edens and John Petrila and four colleagues divided accusations of bias into five major categories:

Starting with a list of 46 different ways of calling an expert biased, the authors searched and found 160 legal cases in which attorneys and judges made disparaging comments about forensic mental health experts. In these cases, 185 individual case participants made a total of 245 separable statements asserting a lack of objectivity and impartiality among mental health experts and/or the fields of psychology and psychiatry more generally.

• FOR SALE: In the largest category, 28 percent of the total, experts were disparaged as financially biased (e.g., "hired guns" or "prostitutes").

• PARTISANSHIP: Following close behind, with 27 percent  of cases, were accusations of advocacy, or having an "axe to grind."

• PSEUDOSCIENCE: About 14 percent of cases involved accusations of non-scientific testimony (e.g., "charlatans" or "junk science").

• MYSTICISM: Psychologists and psychiatrists were accused of babbling nonsense (e.g., "witch doctor," "voodoo" or "hocus pocus") in 6 percent  of the cases.

• NONSPECIFIC BIAS: About one fourth, or 24 percent, of cases involved nonspecific accusations or other types of allegations of bias. 

Interestingly, in more than a fourth of the cases, the disparaging comments were a basis for an appeal, typically by the defense calling foul over prosecutorial slurs against mental health experts. Such appeals were relatively unsuccessful, with only 18 percent of cases being reversed in part due to on-the-record accusations of expert bias. All of the successful appeals were in criminal trials, eight involving sanity or diminished capacity. 

Uptick in nasty name-calling?

Similar to a 1999 study by Doug Mossman, which was the only other known study to look at this issue, the researchers noticed a steady upward trend in disparaging comments in more recent years.

It might be tempting to get depressed by this study, which at first blush seems to validate what we all know and fear. However, if we think about it, the results could be seen as mildly encouraging.

First of all, if a thorough search of the massive LexisNexis database could locate only 160 cases, then blatant accusations of bias may be rarer than we think.

Secondly, there are a heck of a lot more expert witnesses in court these days than ever before. Courts and attorneys increasingly rely on forensic psychologists and psychiatrists to assist in a wide range of psycholegal areas, from child custody to tort damages to criminal sentencing and civil commitment. As well, we are increasingly called upon to explain broader social science research, such as the accuracy of eyewitness identification, to judges and juries. So, as the authors acknowledge, any increase in accusations of bias could just be an artifact of our growing presence in court.

Third, and perhaps most importantly, there really are hacks and quacks, charlatans and hired guns among are ranks. The methodology of the current study did not enable analysis of whether the accusations of partiality or bias were legitimate. In other words, attorneys may not have been just engaging in legal gamesmanship in some of these cases; they might have been righteously upset over actual bias or pseudoscientific methodology on the part of forensic psychologists or psychiatrists.

Hopefully, that's a study someone else will take up on another day.

For now, we're left with a couple of take-home messages:

First, this is not a field for the thin-skinned. We must steel themselves to have our objectivity challenged, sometimes very rudely and without basis.

More fundamentally, assuming that these accusations are tapping into popular perceptions and prejudices, forensic professionals need to work harder to reduce both actual bias and the perception of bias in our work.

The articles are:

" 'Hired Guns,' 'Charlatans,' and Their 'Voodoo Psychobabble': Case Law References to Various Forms of Perceived Bias Among Mental Health Expert Witnesses" by John F. Edens, Shannon Toney Smith, Melissa S. Magyar, Kacy Mullen, Amy Pitta and John Petrila, Psychological Services, 2012. 

" 'Hired Guns,' 'whores,' and 'prostitutes': Case law references to clinicians of ill repute" by Doug Mossman, Journal of the American Academy of Psychiatry and the Law, 1999. 

Bow ties: The simple solution to expert witness credibility

If you are a lawyer anxious over how your expert witness will perform on the witness stand, you can always instruct the expert to don a bow tie: It's just the ticket for that "nerdy nod of credibility."

That's just one of the scintillating nuggets of advice for turning a ho-hum expert into a "great" witness in the latest issue of The Jury Expert, a publication of the American Society of Trial Consultants. Other advice from Doug Carner of Forensic Protection includes instructing the expert to be confident and relaxed and not to be "the hero."

Reading the column made me thankful that the attorneys I work with have more common sense than to focus on the superficial. I would be less than thrilled to have an attorney client making wardrobe recommendations (bow tie or not) or ordering me to just relax.

I don't mean to sound cynical about trial consultants. I'm sure there is a valid place for them in helping prepare witnesses -- especially novitiates -- for trial. But in my opinion, substance is far more important than style. And that's very hard to teach in a simple advice column. So attorneys are better off choosing the right expert in the first place than scrambling to prepare their witness via last-minute wardrobe tips.

Critically, a good expert witness must have legitimate expertise in the topic at hand. Without legitimate expertise, it is hard to be calm and confident. He or she should also be thorough, taking the time to research the issues and understand the specific case facts. And, above all, the witness should convey honesty and humility.

An attorney who has to tell the witness not to play "the hero" has already made a big mistake. That narcissistic expert should have been avoided in the first place. As a colleague once remarked, it helps us to remain humble if we remember that we are just one piece of evidence, like a maggot on a dead body.

Fortunately, The Jury Expert editors had the good sense to solicit rebuttals from other trial consultants, who took issue with Carner's column.

Forensic psychologist Stanley Brodsky, a widely published authority on trial consultation, called Carner's wardrobe advice "demeaning." Experts don't need to be told to dress up for court. And although one or two exceptions come to mind, most of us won't feel more comfortable in a bow tie.

Brodsky also objected to Carner's advice that experts should just "stick to the facts." What distinguishes expert testimony from the testimony of lay or fact witnesses, he pointed out, is that experts are supposed to present not just facts but -- that's right -- expert opinions.

In another rebuttal, trial consultant Elaine Lewis said Carner only stated the obvious, without giving any real insights on how to achieve better results. "For example, we are told an expert 'should remain relaxed' but there is no suggestion on how to accomplish this," she noted.

Ellen Finlay, who brings the perspective of a former trial attorney to her trial consultant practice, said much of what looks like poor witness preparation stems from inadequate law school training in how to craft a compelling direct examination. A well-crafted direct examination provides a road map for jurors and witnesses and is the single most effective way to "communicate your story to both the jury and your own witnesses," she coaches.

If I was in the business of advising attorneys on preparing expert witnesses for trial, I would tell them not to scrimp on time. The biggest mistake I see attorneys making is to throw their cases together at the last minute. Attorneys need to fully explain to their experts their theory of the case, their voir dire and direct examination approach, and what to anticipate from cross-examination.

If the expert is left hanging in the wind, the case will suffer, bow tie or not.

Jail confidentiality, Part II: Open season on insanity consultants

Do insanity consultations fall under the attorney-client privilege? 
Not in DeKalb County, Georgia

POSTSCRIPT: In 2015, the Georgia Supreme Court overturned Henry Neuman's murder conviction based on the trial court's harmful error of violating attorney-client privilege by forcing the defense consultants to turn over their records to prosecutors. My blog post on this ruling is HERE.  

In civil court, expert consultants may be kept secret under attorney-client confidentiality rules. Even with testifying experts, an amendment to the Federal Rules of Evidence allows civil attorneys to avoid handing over the experts' reports until they are in their final form.

Is the situation similar in criminal court? Criminal attorneys often assert that the work product of an expert who is retained only as a consultant -- not as an expert witness -- can be kept confidential under the attorney-client privilege doctrine. But consider this scenario:

An attorney wants to know whether insanity might be a viable defense in a murder case. He decides to retain a psychologist as a consultant. The psychologist agrees to meet with the defendant and give the attorney an initial assessment.

Being an ethical practitioner, the psychologist obtains informed consent from the defendant. He explains that since he is just a consultant and won’t be testifying as an expert in the case, the information that he collects will only be shared with the attorney.

But he is wrong. The next thing he knows, he has been slapped with a subpoena ordering him to bring his notes and test data to court and be prepared to be questioned by the district attorney about his findings. If he refused to cooperate, the prosecutor threatens to search his office and seize the records; a search warrant is already in hand.

Peter Thomas. Photo credit: Chris 
North, Reporter Newspapers

This was the rude introduction to forensic psychology that greeted Peter Thomas of Georgia, a novice to criminal work and court proceedings. He was yanked into the middle of the headline-grabbing case of Hemy Neuman, a high-level General Electric manager who had ambushed and shot to death a subordinate's husband, entrepreneur Russell "Rusty" Sneiderman, outside a preschool in a wealthy suburb of Atlanta, Georgia.

The prosecutor in the Neuman case learned of Thomas's involvement through an old trick -- underhanded but effective -- of monitoring the jail's visitor logs.  

Neuman's attorneys vigorously objected to the subpoena and the legality of the pretrial discovery hearing. Allowing prosecutors to interview Thomas would have a "chilling effect" on defense attorneys' ability to use experts, lest they do their clients "more harm than good," attorney Robert Rubin argued to the court. 

"Mr. Neuman was told, at the beginning of his meeting with Peter Thomas, that his disclosures during the course of that interview would be disclosed only to his legal team," Rubin and co-counsel Douglas Peters wrote in a legal motion objecting to the disclosure. "Mr. Neuman was NOT given the standard warnings usually given during a court ordered evaluation that by cooperating in the evaluation he was waiving his Fifth Amendment privilege. Mr. Neuman did not knowingly waive any privilege, including Fifth Amendment or attorney-client."

But DeKalb Superior Court Judge Gregory Adams was unmoved. He ordered Thomas and, later, a second psychologist, to hand over their evaluation notes forthwith. He said he would first view the materials to protect any information that might fall under the protection of the attorney-client privilege.

Case law murky

The U.S. Supreme Court has never clarified whether the prosecution can discover and use evidence generated by non-witness defense psychiatric experts when criminal defendants raise the insanity defense, leaving lower courts divided on the issue, according to an overview in the Fordham Law Review.

The Third Circuit is an example of an appellate court that has ruled that attorney-client privilege applies in this situation. In its 1975 ruling in U.S. v. Alvarez, it held that "effective assistance of counsel with respect to the preparation of an insanity defense demands recognition that a defendant be as free to communicate with a psychiatric expert as with the attorney he is assisting." In that case, a psychiatric consultant rendered an unfavorable opinion regarding the viability of an insanity defense for a defendant facing trial for kidnapping. The defense went ahead with an insanity defense anyway, without calling the expert to testify. Knowing of the initial expert's opinion, the government subpoenaed him and, over defense objection, the trial court compelled him to testify. The Third Circuit overturned the conviction.

Other courts, however, "have held that merely by asserting the insanity defense, criminal defendants waive all claims of privilege with respect to any prior psychiatric evaluations," reports Elizabeth Maringer in the law review. A prime example was the 1976 case of Edney v. Smith, involving a man facing trial for kidnapping and murdering his ex-girlfriend's 8-year-old daughter. Edney pleaded insanity and called a psychiatrist who testified in support of this plea. The court then allowed the prosecution to call, in rebuttal, the original psychiatrist who had examined Edney for trial preparation purposes and who did not believe that Edney was mentally ill. The New York Court of Appeals upheld Edney’s conviction, ruling that pursuing an insanity defense automatically waives the attorney-client privilege.

The threat of prosecutorial discovery puts defense attorneys in a Catch-22 situation as they weigh options in cases in which mental illness is a potential issue. On the one hand, as Maringer notes, counsel “risk creating witnesses for the prosecution” when they investigate a mental health defense, especially if they use court-appointed experts. On the other hand, they risk violating their client's rights if they do not thoroughly investigate this line of defense.

"The obvious chilling effect upon defense attorneys' willingness to investigate and pursue the insanity defense for their clients conflicts with the policies underlying the Sixth Amendment," Maringer states. "In addition, risk of disclosure diminishes defendants' willingness to cooperate with counsel and psychiatric experts."

'Celebrity angels and demons made me do it'

Hemy Neuman

Neuman's insanity defense was ridiculed in the press. The love-struck defendant claimed that he had heard the voice of a demon who sounded like Barry White and seen an angel who looked like Olivia Newton-John, who ordered him to kill the husband of his love interest.

The defense called at least three mental health experts. Psychologist Adriana Flores testified that in her expert opinion Neuman was suffering from erotomanic delusions and was insane at the time of the killing. Neuman told her he had been visited by a "she-demon" who told him the Sneidermans' children were his.

"He believed he was the father of the children, they were his children and were in danger," Flores testified. "It was his duty to rescue them, to protect them by killing Rusty [Sneiderman], then he could be with his children. 

Another defense expert, psychiatrist Julie Rand Dorney, testified that Neuman showed signs of "paranoia, depression, social isolation, confusion and magical thinking, which could mean psychosis."

The prosecution, meanwhile, painted Neuman as a calculating killer who planned Sneiderman's shooting for months, going to gun shows, taking a gun safety course, going to target practice, renting a car for the shooting and wearing a disguise, according to ABC News coverage.

Psychiatrist Pamela Crawford, called by the government, said she believed Neuman was faking his symptoms. "His discussion of [the demons] was inconsistent," she testified. "At one point he says, 'I know they are not real,' then later says, 'I just want the demons to go away.' He's not even consistent in the same interview."

"The defendant is serving up an insanity sandwich and he's been serving it up since 2010 and he wants you to eat it," District Attorney Robert James told the jury.

Not too surprisingly, the jury rejected Neuman's insanity bid. Neuman was found guilty but mentally ill and sentenced to life in prison without parole.

Appeal may clarify law - at least in Georgia

The judge's decision to turn over Thomas's assessment data to the prosecution will likely figure prominently in Neuman's appeal.

Neuman’s attorney, Robert Rubin, said the prosecution's pretrial subpoena ploy forced the defense to change strategies, and to call Thomas as a witness in order to prevent him from becoming a prosecution witness. Thomas, who had never before testified in court, conceded under cross-examination that he did not test for malingering, and that Neuman may have been faking insanity.

The case should serve as a cautionary one for pretrial consultants. Unless and until this murky area of the law gets cleared up, it is prudent when conducting an insanity evaluation -- even if you are just a consultant and not expected to testify -- to let the defendant know that the information you are collecting may ultimately be discoverable.

After all, you never know who is looking over your shoulder when you sign your name on the jail log. It could be a prosecutor with a subpoena in one hand and a search warrant in the other.

The law review article, available online, is: "Witness for the prosecution: Prosecutorial discovery of information generated by non- testifying defense psychiatric experts" by Elizabeth F. Maringer, Fordham Law Review 62 (3), 1993.

Confidentiality and jail forensic evaluations (Part I of II)

Prosecutor secretly records forensic psychology evaluation 

Alameda County Courthouse, Oakland

The other day, I was evaluating an inmate at the county jail, when we both heard a series of faint clicking sounds. He immediately jumped to the conclusion that "they" were eavesdropping on us.

Nonsense, I thought.They were probably just opening the door of an adjacent visiting room.

But in the nearby county of Alameda (Oakland, California), the legal community is abuzz over an incident in which jail deputies actually did eavesdrop on at least one confidential interview between a forensic psychologist and a criminal defendant.

What's most astonishing is that the prosecutor who requested the surveillance, an experienced trial attorney, did not seem to realize she was doing anything wrong. Several days after ordering the tape-recording, Deputy District Attorney Danielle London presented it to the defendant's attorney, apparently planning to use it as leverage in the case.

The expert who was illegally recorded was conducting an evaluation aimed at determining whether "intimate partner syndrome" (synonymous with battered women’s syndrome) was relevant to explaining why defendant Marissa Manning stabbed her husband to death during a fight.

Santa Rita Jail deputies routinely eavesdrop on conversations between inmates and their friends and families, and audiotapes of such conversations can be used as evidence against defendants. But attorney-client conversations are supposed to be off limits. The district attorney's nonchalance about such a basic violation of attorney-client privilege has observers wondering whether this is a one-off situation or part of a larger pattern.

"This incident has placed the Public Defender's Office on red alert," Diane Bellas, the county's chief public defender, told a newspaper reporter. "It is a felony to record the conversation between an inmate and her attorney or others who are presumed to maintain confidentiality on the inmate's behalf.”

"A prosecutor's intrusion into a defense preparation in this way severely undermines the right to counsel and the ability of a defendant to investigate a case" agreed Charles Weisselberg, a professor of law at the nearby Boalt Law School of the University of California in Berkeley. "It's pretty egregious and striking."

London has been suspended pending an internal investigation.

Coming up in Part II: Confidentiality and jail sign-in logs

180-year sentence overturned over lack of mental health testimony

  Lawyer erred by not calling psychologist, appellate court holds   

A trial counsel’s failure to call a psychologist to testify at the sentencing hearing of a Missouri man with borderline intelligence constitutes reversible error, an appellate court has ruled.

The court upheld a trial court decision that the attorney's performance was deficient, and that the failure to present psychological evidence may have prejudiced the defendant.

A jury deliberated for just a little over an hour at the sentencing hearing of 24-year-old Skylor Radmer before recommending a prison sentence of 180 years. Earlier, the jury had convicted him of two counts of statutory sodomy for molesting his 5-year-old niece.

In upholding the lower-court ruling reversing the sentence, the Court of Appeals for the Western District of Missouri said that psychological testimony about Radmer's borderline intelligence might have resulted in a different outcome.

Radmer's attorney, Bert Godding, knew about Radmer's intellectual handicap because he had represented him in a prior case in which his comprehension of a police Miranda warning was at issue. In that case, he retained psychologist Bill Geis, who testified at an evidentiary hearing that Radmer was functioning at the borderline intellectual level, with an IQ score of 75.

At a hearing on the ineffective assistance claim, Dr. Geis testified that Radmer's low intelligence might have been relevant to explaining his sex offending as a product of poor judgment rather than pedophilia.

The trial attorney also testified at the hearing, admitting that he had no strategic reason for not calling a mental health expert to testify at the sentencing phase of the trial: "I don't believe that I necessarily had a reason not to or to do that," he testified. "I don't know why I didn't call someone like that."

The appellate court rejected the prosecution’s argument that the jury would have found Dr. Geis biased because he had worked for the public defender in the past. Geis is a research professor at the University of Missouri-Kansas City.

The defense lawyer's "failure to call Dr. Geis or a similar expert during the sentencing phase fell below an objective standard of reasonableness," the appellate court unanimously held.

Hat tip: Ken Pope

Appellate court upholds exclusion of SPECT evidence

Yerba Buena Island, San Francisco Bay

On May 22, 2002, the body of Juliette Williamson was found washed up on Yerba Buena Island in the San Francisco Bay. Williamson and her long-time partner Bruce Brooks were well-known street performers known as the Chicago Brother and Sister Blues Band. For years, they had lived together in a purple school bus parked under a freeway.

Within days of Williamson's disappearance, Brooks gave three confessions to friends. He provided graphic details of how he bludgeoned her to death with a hammer after a drunken quarrel. He even took one friend to the location where he had tossed her body into the Bay; there, police later recovered blood samples that matched Williamson's DNA.

The couple’s 16-year relationship had always been tumultuous, but it was deteriorating in the weeks before the killing. Brooks had resumed smoking crack cocaine and had openly threatened to kill Williamson if she left him, according to trial testimony.

Bruce Brooks. Photo credit: M. Macer, S.F. Chronicle

By the time he went to trial six years later, Brooks's story had changed. He testified that Williamson attacked him and knocked him "silly." He saw a fluorescent number three in his mind; the next thing he knew he was dropping Williamson's body over the bridge to bury her at sea. He had no recollection of killing her, but figured he must have.

A defense-retained neuropsychologist, Myla Young, testified that Brooks had frontal lobe damage that might cause him to begin a repetitive act like hitting and not stop until worn out. The impairment also made him prone to amnesia, she said.

But the jury wasn't buying. After three days of deliberations, jurors convicted Brooks of second-degree murder. He was sentenced to 15 years to life.

Appeal: Unfair to exclude SPECT evidence

Brooks appealed, citing the trial judge's exclusion of Single Photon Emission Computed Tomography (SPECT) evidence. He had hoped to introduce the colorful brain scans to convince the jury he had organic brain damage that made it impossible for him to premeditate a murder, or even form a conscious intent to kill. Psychiatrist Daniel Amen was prepared to testify that Brooks' scan, which measures blood flow to certain regions of the brain, looked "very abnormal."

San Francisco trial judge Cindy Lee excluded the SPECT testimony based on concerns about both the method and the messenger.

Daniel Amen promotes his Amen Clinics

Under California's Kelly-Frye standard, for scientific evidence to be admissible in a criminal case, there must be proof that the technique is considered reliable in the scientific community and that the witness is a qualified expert who used correct scientific procedures. The party seeking to introduce the evidence has the burden of proving its admissibility by a preponderance of the evidence.

Regarding the method, the judge ruled that research has not established that SPECT scans can accurately determine cognitive impairment, much less impairment so severe as to preclude the requisite mental states for premeditated murder. While the scans were "pretty glitzy" and "high tech," their colors lacked meaning and had a high potential to confuse the jury, she said.

As to the messenger, the judge had "a 'considerable question' ... as to whether [Amen] is an independent and unbiased expert and truly represents a cross-section of the relevant scientific community," according to a just-issued appellate ruling.

The First District Court of Appeal upheld the trial judge's ruling, endorsing her concerns about both the method and the messenger.

The appellate justices were unable to find any published appellate decision on the issue of whether SPECT evidence is admissible in a criminal trial to support a theory that a defendant's ability to form a specific intent was impaired by organic brain damage. So they conducted their own independent review of the scientific status of SPECT evidence. They were ultimately under-impressed.

[W]e agree with the trial court that defendant failed to establish that SPECT was generally accepted by the scientific community as showing brain injuries that were relevant to the defense theory that he did not form the intent necessary to commit murder. Defendant did not establish a generally accepted correlation between blood flow to a particular part of the brain and any particular behavior…. [A]s the trial court correctly summarized the testimony, "[T]here’s a lack of any testimony that there’s any quantitative percentage of blood flow, specific cognitive functions or other factors that will be impaired or even affected."

Regarding the messenger, the appellate justices said it was within the trial judge's discretion to raise "serious questions about Amen’s qualifications to testify as an expert witness. The court doubted that he could be independent and unbiased in light of his long engagement in significant entrepreneurship activities regarding SPECT via the Amen Clinics and activities as a proponent of the utility of SPECT scan imaging."

Amen's methods questioned

Judge Lee and the appellate panel were not alone in viewing Amen's activities with suspicion.

Amen, a graduate of the now-defunct Oral Roberts University School of Medicine, has said he was "led by God to pursue this work." And the missionary zeal with which he promotes SPECT for everything from depression and anxiety to aggression and drug abuse has raised concerns among other medical professionals.

In 2005, Amen's unconventional treatments had caught the attention of Quackwatch, an international network dedicated to exposing medical "frauds, myths, fads, fallacies, and misconduct." Three years later, Salon ran a piece by neurologist Robert Burton, criticizing PBS for running Amen's "self-produced infomercial" touting his unproven intervention for Alzheimer's disease:

It’s hard to dismiss the religious undertones of Amen’s work…. And yet Amen’s sense of calling hasn't led him to undertake the high-quality clinical investigations that would lend scientific credence to his claims…. Amen states that he has read more than 40,000 SPECT scans and holds himself up as a world expert. But a brief quote from his TV special quickly reveals a very peculiar method of determining what constitutes a normal SPECT scan…. Using Amen’s figures from his TV program, only 3 percent of those he has studied have been interpreted by himself and his staff as being normal. Put another way, 97 percent of patients who attend Amen’s clinic can expect to be told that their SPECT brain scan is abnormal.

But the controversies surrounding neuroimaging in court go far beyond those swirling around Amen and his SPECT scans. Echoing the trial judge's concerns in the Brooks case, the UK Royal Society just this week warned that jurors may be far too impressed with brain images, not recognizing their limited applicability to real-world legal questions.

POSTSCRIPT: On Feb. 29, 2012, the California Supreme Court denied review of the case. 

Top forensic psych’s shameful secrets: A cautionary tale

An investigative report on the secret life of a prominent forensic psychologist is generating controversy on professional listservs. Some want to let sleeping dogs lie. Others, including this blogger, believe the sordid tale contains valuable lessons for the field.

Photo credit: Seattle Times

Stuart "Stu" Greenberg was at the pinnacle of a highly successful career when he committed suicide in 2007 after being caught using a secret camera to spy on women – including fellow psychologists -- in his office bathroom.

Greenberg was a respected leader in forensic psychology. Former president of the American Board of Forensic Psychology, he had functioned as a professional gatekeeper in heading the committee that wrote a national certification exam for the field. He was a sought-after speaker who published articles on ethics in peer-reviewed journals. In court, his opinion could decide the fate of a parent seeking custody of her child. Charging $450 an hour, he had amassed an estimated $1.7 million in personal worth and owned at least two houses and a boat.

But in last weekend's Seattle Times, investigative reporters Ken Armstrong and Maureen O'Hagan reveal new details of Greenberg's less savory side. They go so far as to paint the Seattle psychologist as a "toxic force -- a poison coursing through the state's court system," who destroyed lives while building a career based on "hypocrisy and lies."

Previously sealed records dug up by the newspaper -- including a 1990 disciplinary case -- attest to Greenberg's power and "cunning," the reporters write:

His word could determine which parent received custody of a child, or whether a jury believed a claim of sexual assault, or what damages might be awarded for emotional distress…. [The records] show how he played the courts for a fool. He played state regulators for a fool. He played his fellow psychologists for a fool. And were it not for a hidden camera, he might have gotten away with it.

The report describes how Greenberg coerced Washington state's Examining Board of Psychology into sealing public records of a 1990 disciplinary action against him. The case involved alleged misconduct in four separate child custody cases. The Board imposed a three-year ban on his conducting such evaluations. But "within a year of getting his disciplinary history sealed, Greenberg was giving seminars to other psychologists on the ethics of parenting evaluations," the report says.

As an example of the destruction wrought by Greenberg, the reporters interviewed the complainant in one of the four cases. Surgical nurse Cathy Graden said she had no fears of losing custody of her 4-year-old son after her divorce. What she didn't know was that Greenberg and the lawyer for her ex-husband were limited business partners in a speculative investment venture:

The report Greenberg filed in court eviscerated Graden. It said she posed a grave danger to her son; that she was "probably" sexually abusing him; that she was psychologically unstable and possibly paranoid….In court, testifying, Greenberg described Graden as "quasi-psychotic," but said the diagnosis was tricky, because Graden might appear "quite normal." She would likely deny doing anything wrong to her son, Greenberg said, or alternatively, she "might genuinely not remember."

By the time Greenberg finished, Graden, out in the hallway, had been stripped of all defenses -- and without a clue to what had just happened. If she appeared normal -- well, Greenberg said she would. If she denied hurting her son -- that was part of her disorder. If she challenged Greenberg's work or motives -- she was paranoid. At the end of the hearing … the judge ordered the boy turned immediately over to his father, with Graden allowed to visit only if supervised by a therapist.

Graden finally got her son back when he was nine years old, but only because his father was killed in a work accident.

"Inscrutable field with immense power"

The Seattle Times piece is slanted. It castigates the entire field for the alleged criminal and unethical conduct of one individual. As we all know, there are honorable and dishonorable people in all professions. In my locale, the FBI is investigating a group of rogue police who allegedly sold drugs, ran a brothel and took money from a lawyer to make staged arrests of fathers in child custody cases. Yet the media do not paint all law enforcement with that same dirty brush. And some of the supposed misdeeds for which the reporters lambast Greenberg, such as lacking the clairvoyance to know that a priest he evaluated was lying about the extent of his sexual misconduct, are hardly evidence of turpitude. Nowhere is a spokesperson for our field given space to clarify or comment about the implications.

But in calling forensic psychology "an inscrutable field with immense power," the reporters tap into a popular conception with a kernel of truth.

Power is a corrupting force. Just as Greenberg wielded immense power over the fates of parents and children, forensic psychologists today abuse their power and destroy lives when they invent diagnoses to further pretextual goals, present personal opinion and prejudice masked as science, or testify that they know with mathematical certainty that a person will commit a future crime. Such misconduct is common in certain forensic contexts. In fact, its routine nature presents an obstacle to intervention. I know of one colleague whose attempts to complain about psychologists' improper opinions in court were rebuffed by a licensing board on the grounds that the opinions -- while improper -- were not sufficiently unusual.

Greenberg's tale may thus serve as a cautionary one about why the field should not collectively look away when we see colleagues abusing their power. Individually or as a group, it is our ethical duty to intervene when we see colleagues misbehaving -- stepping beyond the bounds of science, engaging in activities that seem biased, or (as in Greenberg's case) mistreating women or others with less social currency. Perhaps if Greenberg's superficial aplomb had not blinded colleagues to his faults, he could have been redeemed and this public tragedy averted.

Professional condemnation of Greenberg's misconduct serves other purposes. It demonstrates respect for the members of the public who were negatively affected, as well as for our own women colleagues who allegedly suffered sexual exploitation and betrayal by a colleague whom they trusted. It may encourage exploration in our professional literature about the existence of corruption, which always creeps into situations involving power and authority, and how this problem might be addressed.

It may also be useful for each of us to reflect personally on the lessons here. Many of us work largely alone. Without professional accountability, it is easy to go astray. The stakes are high, the material troubling, the settings adversarial. In these difficult circumstances, it is incumbent upon all of us to behave honorably and ethically, to avoid even the appearance of bias, to be transparent in explaining the basis of our often-consequential opinions, and to admit the limits of our knowledge.

In other words, to recognize the inherent power imbalances, and to strive for humility and honesty.

A collection of primary documents and news reports on Greenberg's case can be found at The Liz Library. Also at that site are direct quotes from psychologists' (supposedly) internal debates on the case as culled from two professional listservs. (Note that the presentation is biased and misleading; by publishing mainly one side of a vigorous debate, they misrepresent psychologists as overwhelmingly opposed to public airing of this troubling case. But it's still worth checking out.)

The curious story of 'a reasonable degree of professional certainty'

I recently had a strange experience: An opposing attorney made a motion to exclude my report in a legal case, because I had not written that I held my expressed opinions "to a reasonable degree of psychological certainty." The attorney who had retained me was forced to scramble to obtain a written declaration from me, stating that I did indeed hold my opinions to this level of certitude. I typically do not include this magic phrase in reports, finding it rather obtuse and, frankly, pompous-sounding. So, when my colleague Dr. Worthen expressed knowledge about the phrase, I prevailed upon him to write this guest post. 

Guest post by Mark D. Worthen, Psy.D.*

Expert witnesses who testify based on their medical, psychological, or other scientific training and expertise, are often asked to express their opinions "to a reasonable degree of medical (or psychological or scientific) certainty." But what does this phrase mean and why is it used in legal proceedings?

Before exploring what the phrase means, let's first examine why the phrase is used in courts of law. As it turns out, the "reasonable degree of medical certainty" phrase developed almost by accident and has no clear rationale for its almost universal use. After conducting exhaustive research, law professor Jeff L. Lewin traces the origins of the phrase to Chicago, Illinois sometime between 1915 and 1930 [1]. Professor Lewin notes:

While the phrase was generated by the efforts of Illinois attorneys to comply with legal doctrine, litigators in other states adopted this curious phrase through unreflective imitation of models provided in a best-selling manual on trial technique. The phrase was then incorporated into legal doctrine through the judiciary's uncritical acceptance of this attorney usage. The judicial response to the phrase thus exemplifies the generation of legal rules by chance instead of by deliberate judicial choice.

In addition to lacking a clear rationale for its usage, the "reasonable degree of medical certainty" phrase also lacks a consistent definition.

Many professionals who use the phrase in their testimony have their own understandings of the phrase's meaning. For example, some assume that the phrase means that there is a preponderance of the evidence in support of their opinion, or that their opinion is "more likely than not" to be correct. Other professionals require more evidence: They assume that the phrase means that they possess "clear and convincing" evidence for their opinion or even that their opinion is accurate "beyond a reasonable doubt." On the other hand, most testifying experts probably do not have a pre-determined definition for the phrase and utter it simply because they know it is expected.

Although the phrase is not routinely used in the practice of medicine, psychology, or other scientific disciplines (have you ever seen a journal article that concluded, "To a reasonable degree of psychological certainty" we found that X caused Y?), textbooks written to provide guidance to professionals who testify in legal proceedings have offered various definitions. For example, the authors of Effective Medical Testifying: A Handbook for Physicians assert that the phrase means "more likely than not", i.e., 51% probability or more.

Black's Law Dictionary defines the phrase similarly: “A standard requiring a showing that the injury was more likely than not caused by a particular stimulus, based on the general consensus of recognized medical thought.”

However, courts have not always agreed with this definition. For example, the Superior Court of Pennsylvania in Griffen v. University of Pittsburgh ruled that a doctor who indicated that there was a 51% chance that a certain action caused an injury did not provide a sufficient basis for testifying to a reasonable degree of medical certainty. In declaring that 51% certainty was not certainty for the purposes of the law, the Court did not indicate what percentage of certainty is required.

In other cases, it seems that the courts don't care how confident an expert may be about his or her opinion. What matters is that they use the "magic phrase" during their testimony. For example, in a Missouri case:

... a medical doctor testified that he was ninety percent certain as to the causality of a condition. See Bertram v. Wunning, 385 S.W.2d 803, 807 (Mo. Ct. App. 1965), appeal after remand, 417 S.W.2d 120 (Mo. Ct. App. 1967). However, despite giving this high probability, he later retreated when asked to testify as to causation of the condition with “reasonable medical certainty.” In the end, notwithstanding the strong and “practically certain” testimony of the doctor, the Missouri court found the testimony to be insufficient because it lacked the “reasonable certainty” stamp of approval. [2]

Frustration with the inexactness of the phrase has led some to call for a clear-cut, agreed-upon definition.

The American Law Institute (ALI) declared, in its Restatement (Third) of Torts: Liability for Physical and Emotional Harm (§ 28, Comment e, 2010), that the phrase should be specifically defined to mean that an expert's opinion is "more likely than not" accurate. The ALI reasoned that the standard for "reasonable degree of medical certainty" should not exceed the standard of proof considered by juries in tort cases, i.e., a preponderance of the evidence.

Attorneys James M. Beck and Mark Herrmann argue that the ALI standard "dumbs down" expert witness testimony and that the reasons for the proposed changes are faulty in many respects. They argue that the use of "reasonable medical certainty" should be retained and that its meaning should come from the standards for decision-making commonly used in the expert's profession.

Attorney Nathan Schachtman also argues for continued use of the phrase:

Surely, however, the phrase is not semantically empty. “Certainty” has clear epistemic connotations and implications for the witness’s opinion, both in terms of his own state of mind, and in terms of the empirical support the witness has for his opinion in the form of reasonably relied upon data, and sound inferences to a reliable conclusion. Subjectively, the witness who utters the phrase acknowledges that he is not speculating and that he believes that his opinion satisfies professional standards for claims of knowledge. A witness who qualifies his opinion with these “magic words” communicates his willingness to put his professional reputation on the line, and to defend the opinion before his peers. Objectively, the phrase conveys the notion of reliable knowledge. To be sure, human beings may not enjoy “certainty” in their knowledge of empirical propositions, but the “reasonable” qualifier makes the entire phrase meaningful and important.

While the debate over the definition of the phrase and whether or not it should be used at all will no doubt continue, individual experts might rightly ask, "Well, what should I do if asked to give an opinion to a reasonable degree of professional certainty?"

Here are some suggestions:

1. Ask the attorney you're working with if he or she plans to use the phrase in his or her direct examination of you. If so, ensure that each of you understand what you mean by the phrase, so that you'll be ready in the event that opposing counsel or the court asks you to define what you mean by "reasonable professional certainty." It's unlikely that you will be asked to define the phrase but it's better to be prepared with an answer than to stumble and mumble.

2. Make sure that your definition comports with relevant case law in your jurisdiction. For example, in Pennsyvania, you would not want to say, "It means that it's more likely than not" (see above).

3. In terms of how to define the phrase, consider how your profession determines "reasonable certainty." For example, when do you consider an opinion certain enough to proceed with a given treatment (medicine or psychology) or to proceed with a certain construction plan (architecture or engineering)?

4. If you give a numerical representation of your confidence in your opinion, a savvy attorney might challenge you on your ability to determine your own level of confidence with accuracy, citing research on the overconfidence effect. Your best bet is to be familiar with this research and to err on the side of underestimating your confidence.

5. Better yet, avoid numerical representations of confidence and focus on the evidence for your opinion, rather than your confidence in your opinion. Think about it this way: Are jurors or judges more likely to be persuaded by explanation #1 or #2:

• Explanation #1: " 'Reasonable degree of psychological certainty' means that I am 75% sure of my opinion." 

• Explanation #2: " 'Reasonable degree of psychological certainty' means that I found clear and convincing evidence for my opinion."

6. Focusing on the evidence for your opinion is an important distinction because it redirects the trier of fact to the strenth of your argument, namely, the scientific methods and research evidence for your conclusions.

FOOTNOTES
 

1. The Genesis and Evolution of Legal Uncertainity About "Reasonable Medical Certainty," Maryland Law Review, 57, pp. 380-504, 1998.

2. From "An Enigmatic Degree of Medical Certainty" by Nelson Abbott and Landon Magnusson, Utah Bar Journal, July/August 2008 (Vol. 21 No. 4).

*Guest author Mark D. Worthen, Psy.D. is a clinical and forensic psychologist in Asheville, North Carolina. Visit him on the web at DrWorthen.net.

Special journal issue on psychology-law available for free!

A special issue of Current Directions in Psychological Science showcasing the latest psychological research applied to the legal system has received enormous interest. As a result, the editors and Sage Publications are making the full contents available free to the public through June 15, 2011. The articles cover a wide range of topics of interest to my readers, including competency, violence risk assessment, profiling, false confessions, eyewitness evidence, and jury decision making. You are encouraged to download these articles for later reading, and to freely share these links with colleagues. 

  FULL CONTENTS - CLICK ON BELOW LINKS TO DOWNLOAD  

Comment From the Editor
Randall W. Engle
 
Editor's Introduction: Special Issue on Psychology and Law
Ronald P. Fisher
 
Resolving the Offender "Profiling Equations" and the Emergence of an Investigative Psychology  
David V. Canter
 
Forensic Interviewing Aids: Do Props Help Children Answer Questions About Touching?
Debra Ann Poole, Maggie Bruck, and Margaret-Ellen Pipe
 
Interviewing Cooperative Witnesses
Ronald P. Fisher, Rebecca Milne, and Ray Bull
 
Current Issues and Advances in Misinformation Research
Steven J. Frenda, Rebecca M. Nichols, and Elizabeth F. Loftus
 
Eyewitness Identification
Neil Brewer and Gary L. Wells
 
Outsmarting the Liars: Toward a Cognitive Lie Detection Approach
Aldert Vrij, Pär Anders Granhag, Samantha Mann, and Sharon Leal
 
Suspect Interviews and False Confessions
Gisli H. Gudjonsson and John Pearse
 
Current Directions in Violence Risk Assessment
Jennifer L. Skeem and John Monahan
 
Future Directions in the Restoration of Competency to Stand Trial  
Patricia A. Zapf and Ronald Roesch
 
The Utility of Scientific Jury Selection: Still Murky After 30 Years
Joel D. Lieberman
 
Expert Psychological Testimony  
Brian L. Cutler and Margaret Bull Kovera
 
The Psychology of Trial Judging  
Neil Vidmar
 
Jury Decision Making: Implications For and From Psychology
Brian H. Bornstein and Edie Greene

Steffan's Alerts: New column features fresh scholarship

In a new column launching today, forensic psychologist Jarrod Steffan scours the academic journals as they roll off the presses and brings you his top choices for articles of interest to forensic practitioners. Just click on a title to go to the journal site and read the full abstract; click on an author's name to request the full article. Feel free to leave comments on this new feature in the comments section of the blog.

Expert testimony in false confession cases

Mock jurors perceive that coercive interrogation tactics elicit confessions from guilty but not innocent suspects. Authors Iris Blandon-Gitlin, Katheryn Sperry, and Richard Leo go on to report the effects of an actual disputed confession case on jurors’ perceptions of false confessions in the current issue of Psychology, Crime and Law.

Meta-analysis of mental health courts

Are mental health courts working? Preliminary analyses point in the direction of success, according to an article by Christine Sarteschi and colleagues published in the Journal of Criminal Justice.

Malleability of juvenile offenders’ risk for recidivism

In the new issue of Criminal Justice and Behavior, Claudia E. Van Der Put and colleagues provide data showing that dynamic risk of adolescents' decreases as they age, thereby affecting the effectiveness of risk assessment and related interventions.

Feigning competence to proceed to trial

Preliminary data, reported by lead author Randy Otto in Assessment, suggest that a new measure called the Inventory of Legal Knowledge may assist evaluators in appraising defendants’ response style in competency to stand trial evaluations.

• A previous blog post on the new instrument is HERE.

Prostitution and serial murderers

Compared to killers of nonprostitutes, serial murderers of prostitutes have killed more and for longer periods of time, according to a study by Kenna Quinet published in Homicide Studies.

The state of the science in stalking

In Aggression and Violent Behavior, Kathleen Fox, Matt Nobles, and Bonnie Fisher take stock of the literature on stalking assessment and, based on their review of 56 studies, recommend guidelines for future research.

Steffan's alerts are brought to you by Jarrod Steffan, Ph.D., a forensic and clinical psychologist whose practice is based out of Wichita, Kansas. For more information about Dr. Steffan, please visit his website.

Special issue, Current Directions in Psychological Science

The February issue offers a cutting-edge roundup of psychology-law topics, with contributions from many luminaries. Click on an author link to request a reprint.

• Expert Psychological Testimony by Brian L. Cutler and Margaret Bull Kovera (I haven't finished reading this one yet, but I see that it discusses the critical issue of adversarial allegiance, identified by Murrie, Boccaccini and their colleagues in regard to the Psychopathy Checklist)

• Future Directions in the Restoration of Competency to Stand Trial by Patricia A. Zapf and Ronald Roesch

• Current Directions in Violence Risk Assessment by Jennifer L. Skeem and John Monahan

• The Psychology of Trial Judging by Neil Vidmar

• Jury Decision Making: Implications For and From Psychology by Brian H. Borstein and Edie Greene

• Suspect Interviews and False Confessions by Gisli H. Gudjonsson and John Pearse

• The Utility of Scientific Jury Selection: Still Murky After 30 Years by Joel D. Lieberman

• Resolving the Offender "Profiling Equations" and the Emergence of an Investigative Psychology by David V. Canter

• Forensic Interviewing Aids: Do Props Help Children Answer Questions About Touching? by Debra Ann Poole, Maggie Bruck, Margaret-Ellen Pipe

• Interviewing Cooperative Witnesses by Ronald P. Fisher, Rebecca Milne, and Ray Bull

• Current Issues and Advances in Misinformation Research by Steven J. Frenda, Rebecca M. Nichols, and Elizabeth F. Loftus

• Eyewitness Identification by Neil Brewer and Gary L. Wells

• Outsmarting the Liars: Toward A Cognitive Lie Detection Approach by Aldert Vrjj, Par Anders Granhag, Samantha Mann, and Sharon Leal

How competent are the competency evaluators?

Largest real-world study finds modest agreement among independent alienists

A bad forensic report by a bad evaluator sets bad events in motion.

True story: A judge ordered a robbery suspect to undergo evaluation. A drive-by psychologist opined that the defendant was incompetent to stand trial due to schizophrenia and attention deficit/hyperactivity disorder (ADHD). The judge rubber-stamped the evaluator's opinion. The defendant was shipped off to the dysfunctional state hospital system for competency restoration treatment. There, the psychologist's diagnoses were rubber-stamped. The unruly defendant was shot full of powerful antipsychotics, given a few months of bus therapy, and proclaimed competent. The defendant had never been psychotic in the first place. Years later, he remained just as mentally retarded as ever.

"Penny-wise, pound-foolish" is the expression that comes to mind. The courts try to save money by appointing only one psychologist per case, and by paying a ludicrously small sum that encourages shoddy practices. But cleaning up the resultant messes is costly, inefficient, and fundamentally unfair.

Competency evaluations are the bread and butter of forensic work. An estimated 60,000 defendants per year -- roughly 5% of the total -- are evaluated to see whether they understand their legal situations and can rationally assist their lawyers in their defense. But for all of the importance of accurate assessments, both to a smoothly running court system and to the rights of the mentally ill to a fair trial, surprisingly little is known about the real-world accuracy of forensic evaluators.

In the case I just outlined, the judge viewed psychologists and psychiatrists as equal and interchangeable, all inherently reliable and trustworthy. At the other extreme, some believe forensic opinions are as random as a chimp with a typewriter.

Hawaii: Exemplar or exception?

Only one U.S. state squarely addresses the problem of reliability in competency evaluations. In the Aloha State, when a doubt is raised as to a defendant's competency, three separate evaluators must conduct independent evaluations. One evaluator is a state employee; the other two are independent. One must be a psychiatrist. By law, the three cannot talk with each other about the case.

This makes Hawaii the perfect setting to examine the real-world reliability of competency evaluators. In a study just accepted for publication in Law and Human Behavior, three investigators took advantage of this opportunity to conduct the largest naturalistic study ever of evaluators' agreement about competency to stand trial.

It should not be a surprise that Daniel Murrie and Marcus Boccaccini are two of the investigators. Not the types to run Psych 101 undergrads through artificial lab experiments, these two are committed to examining forensic practice in the courtroom trenches. I've blogged about their previous work exposing "partisan allegiance" effects in the real-world application of the Psychopathy Checklist (PCL-R). For the current innovative study, they teamed up with W. Neil Gowensmith of the Hawaii courts' forensic services unit.

Examining 729 reports authored by 35 evaluators, they found that all three evaluators agreed in just under three out of four -- or 71 percent -- of initial competency referrals. Agreement was a bit lower -- 61 percent -- in cases where defendants were being reevaluated after undergoing competency restoration treatment.

Consistent with the results of a hot-off-the-press meta-analysis of 50 years of competency research, evaluators believed that the broad majority of defendants referred for evaluation, about 73 percent, were competent to stand trial. This figure was somewhat lower for defendants being reevaluated after an initial finding of competency, with evaluators opining competence in about half of such restoration cases.

Why do evaluators differ?

As far as why agreement is not higher, the study raised more questions than it answered. The researchers sifted through the data looking for patterns, but none jumped out. Evaluators did not lean one way or the other by discipline (psychologist vs. psychiatrist) or by employer (state versus private practice). Defendant demographics were not explanatory. Nor were evaluator disagreements about diagnosis.

It would be interesting to conduct qualitative analyses of the 216 cases in this study to see whether those in which evaluators differed were more complex and ambiguous than the others. I suspect that to be the case.

Competency is nebulous. It exists along a continuum, so there is no precise cut point at which a defendant is automatically "competent" or "incompetent" to go forward with his legal case. Thus, evaluator agreement will never be perfect, nor -- necessarily -- should it be.

How did the judges rule?

One of the more intriguing aspects of the study was its exposition of how judges ruled after being presented with three reports. Not surprisingly, when evaluators were unanimous or split 2-1, the judges tended to go with the majority. But unlike the judge in the vignette I described earlier, many Hawaiian judges were independent thinkers who did not just rubber-stamp the evaluators' opinions.

When they disagreed with the opinions of the court-appointed psychologists and psychiatrists, it was typically to find a defendant incompetent. In fact, in a few cases the judges found defendants to be incompetent even when all three evaluators believed a defendant was competent. In this way, they elevated defendants' due-process rights over prosecutorial efficiency. But maybe that's just Hawaii.

Moving forward

I found the results somewhat encouraging. When not subjected to partisan allegiance pressures, forensic practitioners agreed about three-fourths of the time about whether a defendant was competent to stand trial or not.

Still, if these results are generalizable, it means evaluators will disagree in about two or three cases out of every ten. So in jurisdictions that appoint only a single evaluator, the researchers point out, many judges may be unwittingly rubber-stamping an idiosyncratic -- and even patently incorrect -- opinion:

[T]o the extent that there is a factually correct answer to the question of whether or not a defendant is competent to stand trial, relying on one evaluator increases the likelihood that the court reaches an incorrect decision (by following an incorrect single opinion that would have been revealed as a minority opinion if other evaluations were available). In some instances, this may result in delaying a trial while a defendant is unnecessarily hospitalized. In other instances this may result in a defendant proceeding to trial when additional evaluator(s) would have opined the defendant was unable to participate meaningfully in that trial….

The justice system needs to continue to wrestle with how to handle these competing demands -- efficient use of resources versus fair consideration of defendants' right to due process.

Murrie and Boccaccini are on a roll. Let's hope they keep churning out this ground-breaking line of research, examining the real-world vagaries of forensic practice, and that others climb down from the ivory towers and jump on their bandwagon.

As they note, "naturalistic studies of field reliability are an essential first step in gauging wide-scale quality across all manner of forensic practice and targeting areas for improvement."