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Expert-Witness-Psychologist.com
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The list of potential experts that an attorney can choose from was recently expanded by the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) The Supreme Court agreed to review Daubert in order to address long-standing divisions among the lower courts regarding the relationship between the Federal Rules of Evidence and the Frye rule when determining the admissibility of scientific evidence by expert testimony.
Federal Rule of Evidence 702 establishes the threshold criteria for admission of expert testimony:
(a)
whether the scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue and
(b)
whether the expert is sufficiently qualified to render such testimony based on his or her knowledge, skill, experience, training, or education.
As to Rule 702's requirement that the evidence be helpful to the trier of fact, the Court declares that the proper test is one of "fit". There must be "a valid scientific connection to the pertinent inquiry" in order for scientific expert testimony to be admissible. That is, the court must be able to:
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- discern that scientific research has been done that is pertinent to the legal questions at hand
- that the evidence to be presented is based on that research, and
- that the expert utilized scientifically reliable methods for gathering the data on which conclusions are based.
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The Role of the Psychologist: Psychological and psychiatric evidence has become a significant part of many trials in the past few decades, and since courts continue to be faced with legal issues whose resolution may be informed by social and behavioral science evidence, it will probably continue to be so. Social and behavioral science evidence can take several forms, including the presentation of the results of empirical research or clinical assessments conducted for purposes of trial. For example, social and behavioral science evidence has been used by the court to:
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- discover if an individual understood the information conveyed in the informed consent process;
- determine community beliefs and standards for obscenity cases;
focus on the operation of the trial process (e.g., jury's
understanding of instructions); and
- provide information about how parents respond to their child in the home for post-custody placement.
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The value of social and behavioral science evidence is not limited to understanding mentally ill persons, dangerous persons, or other
deviant populations of concern to behavioral, clinical science. Social and behavioral science evidence can be used to understand the behavior of all persons .
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Treating Professional vs. Evaluator?: A treating psychologist's role is to help ease a patient's presenting emotional and psychological distress without necessarily determining the facts of the incident or causality.
A forensic psychologist
incorporates clinical experience, knowledge of psychology and its empirical underpinnings to construct an independent, objective opinion. Relevant data is gathered and analyzed as part of a process of alternative hypothesis testing to formulate an expert opinion which can be effectively communicated by written report, deposition, or courtroom testimony.
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The Psychologists’ Rules: In the State of Florida the most relevant statutes governing court evaluations by psychologists include:
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- F.S. 90.503 (2)(d), 4(b), (c)
- F.S. 455.667 (4), (5)(b), (c)
- F.S.455.671
- F.S.490.0147
- F.A.C. 64B19-18.004
- F.A.C. 64B19-19.002, 19.006
- Supreme Court Rule 12.363
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The general areas of concern include matters related to:
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- identification of the 'service user',
- privilege, confidentiality, and release of records,
- mandatory reporting obligations, and
- procedural and financial considerations.
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The most widely disseminated, yet most often ignored, set of guidelines for the conduct of psychologists acting in the role of
"expert" may be found in the Ethical Principles of Psychologists and Code of Conduct. There are four standards of professional conduct that appear clearly applicable to psychologists' expert
testimony:
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- Standard 1.06, "Basis for Scientific and Professional Judgments", charges psychologists to rely on scientific and professionally derived knowledge in their practice.
- Standard 2.02, "Competence and Appropriate Use
of Assessments and Interventions", requires psychologists to select assessment instruments on the basis of research indicating the appropriateness of the instruments for the specific issue at hand and directs psychologists to actively work to prevent misuse of those instruments.
- Standard 2.04, "Use of Assessment in General
and With Special Populations", prescribes familiarity with the psychometric properties and limitations of assessment instruments used in the practice of psychology.
- Standard 2.05, "Interpreting Assessment Results", requires psychologists to directly state reservations they may have about the accuracy and limitations of their assessments.
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In addition to the Ethical Principles of Psychologists and Code of Conduct the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1990) addresses similar issues from a specialized perspective. Although only the Ethical
Principles of Psychologists and Code of Conduct is enforceable by the American Psychological Association, both sets of principles and guidelines provide the ethical basis for many of the practical challenges to psychological expert testimony. Expert testimony should be based on adherence to the following practical and easily discernable parameters:
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1. Data should be gathered using the most
scientifically reliable and valid assessment tools available.
Psychologists, and the attorneys who cross examine them, should be acutely aware of the limitations of assessment tools from both a theoretical and psychometric perspective, particularly those that are not standardized or that have limited scientific research findings documenting their reliability or validity.
2. Conclusions should be drawn based on theories having scientific validity.
There are many competing theories of behavior from which diagnoses and treatment recommendations may be drawn. There is also a large scientific literature that has addressed empirically testable predictions based on those theories. However, many theoretical constructs are presented by psychologists in expert testimony for which there is no scientific validation, or for which the scientific basis is very slim. The current emergence of 'syndrome' testimony is a case in point.
3. Testimony should be presented based on both the sufficiency of the theory and the underlying empirical data as it applies to the legal questions to be addressed.
Many of the concerns before the Court have not been specifically or adequately studied in the scientific literature, or if they have, the data are equivocal or inadequate.
In Daubert the court specifically cites evidence of the scientific reliability and validity of the methods and theories on which expert testimony is based as touchstones for determining whether particular testimony is admissible.
4. Data gathering methods (tests, interviews) need to be psychometrically sound.
Psychologists as experts need to be aware of the psychometric properties of the instruments they use and the strengths and limitations of those instruments. More importantly they may need to adequately justify their use of less psychometrically valid instruments over ones that have better psychometric properties.
An ethical expert witness will also be prepared to report the limitations of his or her data-gathering procedures and discuss how those limitations may affect the conclusions drawn from those data.
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For more detailed information on subjects related to the role of the psychologist as an expert, procedures for custody evaluations, an
overview of various tests, and excellent reference sources please scroll to the
RESOURCES and PUBLICATIONS page.
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1 A Judge's Deskbook on the Basic Philosophies and Methods of Science, by Shirley A. Dobbin, Ph.D, and Sophia I. Gatowski, Ph.D Chapter 10: Psychological and Psychiatric Evidence: A Brief Overview [see: http://www.unr.edu/bench/chap10.htm ]
2 Richard Gardner's (1992) construct of Parental Alienation Syndrome is a case in point. PAS is presented by Gardner as a palpable constellation of symptoms present whenever a child is emotionally distanced from a parent in the context of divorce litigation. He asserts that this is always the case when such emotional distance is present and attributes this to malevolence on the part of the mother more often than not. Excellent criticism of this 'syndrome' may be found in articles by this author (Poliacoff, 1999) and by Cherri Wood (1994).
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