Trial Consulting and Expert Testimony

Posted by permission of Dr. Thomas O’Connor. Copyright by T. O’Connor.

“If you’re not outraged, you’re not paying attention.” Anonymous

There are numerous ways that a forensic psychologist can assist the many kinds of courts at law (civil, criminal, family, probate, juvenile, and mental health), and there are more ways to render assistance than the two most lucrative and active ways mentioned in this title:trial consulting, which involves helping prepare witnesses, helping select or deselect jurors, and helping decide on specific trial strategies; andexpert testimony, which involves sitting on (and surviving) the witness stand. Some forensic psychologists are perfectly comfortable limiting their assistance to “anonymous” reports, evaluations, and assessments done for parties at law in the pre-discovery process (the name of any psychologist doing a report doesn’t have to be known unless the report and/or psychologist will be used at trial). Others (including a large number of social scientists, nonprofit and professional organizations) are most comfortable at the appellate (appeal) stage, where they can file “amicus curiae” (friend of the court) briefs, which are documents filed by those who either have a stake in the outcome or have research knowledge to offer the court. Others simply serve as consultants in a court case or carry out research on court systems in general.

No two courts are alike, and civil law is vastly different from criminal law. This lecture may have to provide a review of court systems as well as refresh the reader’s knowledge of civil versus criminal law. Elsewhere, the topics of “what constitutes an expert” and “admissibility of scientific evidence” have been discussed, and are suggested background reading. To start, let’s assume that the reader already knows something about criminal justice systems, so therefore a review of civil justice is in order. In many ways, civil courts are where the action is for forensic psychology.

THE ROLE OF EXPERTS IN THE CIVIL JUSTICE SYSTEM:
A PRIMER IN TORT LAW & PERSONAL INJURY

In civil law, the state is not usually involved in any “ownership” of the charges. One party (an individual or group) files suit against another party that a “tort” has occurred. Tort law is a branch of civil law, where the responsibility to take action (to sue, to litigate) lies on the citizen. A tort is a wrongful act that causes injury or damage, and the word “tort” comes from the Latin word for “twisted” and the Norman French for “a wrong.” A civil suit is generally filed by submitting to the appropriate court a document with numbered lines which contains (1) a list of “pleadings” or allegations of what the other party did or failed to do. This document will also contain (2) a list of “damages” and there are four kinds of damages: physical, mental, emotional, and economic; and it is almost always the case that when one party puts mental or emotional damage at stake or on the line, this opens the door for the other party to hire their own forensic psychologist as an expert to conduct an “independent” examination. A civil suit will also contain (3) a list of “remedies” which is the amount of compensation or reparation in terms of money which will make the injured party “whole” again, or in the position they would have been in had they not suffered the wrong.

The compensation requested and/or awarded need not bear any relation to the means of the defendant, although in practice, parties with “deep pockets” or at least the means to pay something are usually sought out. There is no lower age limit in civil law, so grade school children could sue one another if they wanted to. The statute of limitations for a civil action is 6 years from the incident, 3 years in the case of auto accidents, and if mental incapacitation is involved, no time limits apply. If emotional injuries are claimed, one of four legal rules, as explained byWalker & Shapiro (2004), will be applied by the state courts: (1) the impact rule, where the emotional injury is the result of physical injury; (2) the zone of danger rule, where there is no physical impact, but the victim was within a zone of danger or harm’s way; (3) the bystander proximityrule, where the victim was near the scene, observing the scene, or was a family member or close friend of the victim; and (4) the full recovery rule, which allows for being a victim of highly stressful circumstances where the stress is so intense, it would cause problems in someone with no pre-existing mental or emotional problems. Civil suits in federal courts use similar, but different rules; e.g., a civil rights claim for discrimination or harassment does not have to involve a showing of damages as long as the pattern of discrimination or harassment has been demonstrated.

Tort law follows negligence law in matters of proving liability. “Proof,” it must be remembered need only reach the preponderance of the evidence standard in a civil case, and this has been (and is) often described as “more likely than not” or 51% likely. Theprinciples of liability establish the “corpus delecti,” or required elements for determining that a true wrong has occurred (or in the case of criminal law, that a true crime has occurred). There are four elements of liability under tort law: (1) duty; (2) breach of duty; (3) proximate cause; and (4) harm. A duty exists when there is a special (professional-client) relationship between the parties or the victim belongs to a special protected class (e.g., elderly, young, or mentally challenged), and an expert can show that a certain standard of care exists in that relationship. Usually, an industry or profession representative is the expert who testifies about what is the relevant and/or “reasonable” standard of care (although sometimes a qualified forensic psychologist might do this), and sometimes a judge will declare some group to be a special protected class for purposes of a particular trial, thus rendering inquiry into the standard of care irrelevant. Standard of care must be determined objectively and by national standards or guidelines; it can NOT be determined post hoc in a particular case from the harm done. A breach of duty is proven by showing that substandard care existed, either by act or omission, and such breach is usually decided upon by experts testifying about what the local, regional, or national customs are; i.e. a breach of the standard of care. Proximate cause describes the legal logic (not the factual logic) of how much one factor is a more substantial cause of something when there are multiple factors involved. Experts are generally pushed for an opinion on this (as long as not touching upon the “ultimate issue” of blame or guilt), and lawyers use a variety of rules with proximate cause, such as the foreseeability test and the “but for” test. However, proximate cause also contains the notions of fairness and reasonableness in determining if a dereliction or breach of duty is a significant and/or substantial cause of harm. Harm is proven by demonstration of significant injury, or impairment, on the part of a victim. The impairment must be such that an expert can testify that the victim’s post-injury state shows a significant degree of deterioration from their pre-injury state. Sometimes, the showing of excessive economic damages will suffice for this, and an expert like a forensic accountant will be used to tally up all the total (lost opportunity) costs.

Intentional Torts
There are some torts which are concerned with intent (fault), but many more torts are concerned with recklessness and negligence (carelessness). A tort where intent may be relevant usually involves behavior of such an “extreme and outrageous” nature that a malicious state of mind can be inferred, but compensation is always tied to behavior, not state of mind, and outrageous behavior, like recklessness, will usually result in “extra” compensation (exemplary or punitive damages). Two examples of intentional torts should suffice: (1) a product manufacturer (such as a tobacco company) who covers up scientific knowledge of health risks in order to pursue profits; and (2) a professional (such as a priest, doctor, or lawyer) who violates their code of ethics in such an egregious manner (e.g. manipulates power in order to have sex with a client) that not only is community decency affronted but the offender needs to be made an example of. Most intentional torts have an element of assault or personal danger involved; e.g., stalking and/or the $8.5 million civil award in the O.J. Simpson case for O.J. intentionally putting Nicole in danger of being killed. Intentional torts may also involve certain wrongful death cases where family members sue another family member believed responsible for another family member’s death. In most cases, the “extreme and outrageous” or “egregious” qualities of an intentional tort require proving “emotional distress” as the injury or harm done. If a more serious harm, like impairment, is claimed, then the court must inquire into the plaintiff’s pre-existing mental health. Therefore, most lawsuits only claim emotional distress, which requires present-day assessment of the plaintiff’s mental health. The forensic psychologist who conducts this assessment for emotional distress may or may not be the same one who testifies as to the “nexus of harm” which renders an opinion about whether it was the breach of the standard of care which caused the emotional distress. Forensic psychologists are not usually asked for more than a “nexus” opinion, although a few (perhaps those with law degrees) will be allowed to testify as to proximate cause (proximate cause is usually just a but for test to assess the nexus), although proximate cause (and the ultimate finding of wrongdoing) are usually a legal matter settled by a judge or jury, who weight both the plaintiff’s case and the defense strategy. The only valid defenses to an intentional tort are self defense, defense of others, defense of property, consent, necessity, and authority of law (good faith).

Reckless Torts
When someone disregards a known risk, they are acting in a “reckless” manner, and in order for a civil lawsuit to be successful in this, it must be proven that the risk was known about at a particular point in time. If the known side effects of a drug, for example, are NOT known at the time the prescription was made, then a lawsuit (even a class action lawsuit) cannot be successful. However, in the not-uncommon case where one drug has fewer known side effects than other, and the physician still ordered the one with more known side effects, this becomes grounds for a medical malpractice lawsuit. For a common medical malpractice lawsuit like this to succeed, the plaintiff also needs to prove that there was “inattention” or “ignoring” of the risk. Physicians usually try to protect themselves in this regard by getting patients to sign informed consent statements, where the fine print claims that the physician will consider all risks and/or discuss them with the patient, but lawyers usually have an easy time destroying the validity of such informed consent statements on one of two grounds: (1) by claiming the plaintiff was coerced, incompetent, or suffering too much at the time of signing, and sometimes a forensic psychologist is involved in this; and (2) by claiming that the risk taken was either unnecessary or too great, and sometimes a forensic psychologist is involved in this. The lesson to be learned here is that most “waivers,” “disclaimers,” or “informed consent” statements usually aren’t worth the paper they’re written on in most matters of law.

Negligence Torts
Most cases of (mere) negligence are defined by the element of “foreseeability” which simply means the presence or absence of foresight; e.g., if the defendant “should have” seen the causal connection between their behavior and the subsequent harm. Negligence cases do NOT explore anyone’s state of mind; if a “malicious” state of mind is inferred, then the case is an intentional tort, not a negligence tort. In most cases, the defendant in a negligence tort belongs to a special protected class or population group where a certain standard of care is self-evident; e.g., the handicapped, or the case involves a certain place, forum, or premises (“premises liability”) where some reasonable care can be expected; e.g., shoveling the snow in front of a business or school entrance. Almost all cases of a negligence tort involve the concept of “due diligence” which means that the standard of care is measured by the facts of each case. A wide variety of malpractice claims constitute the many types of negligence torts, and they occur with such frequency in so many different contexts that most employers or their holding companies carry special “insurance” for whenever a negligent injury or harm occurs. It is important to note three things here: (1) such insurance is different from workers compensation, which is a no-fault system and paid out separately; (2) payouts are usually capped at about $150,000 per settlement, and the fine print usually closes off further litigation; and (3) only the “company” is protected, not the employee or agent responsible, who can be further sued. Negligence torts are further unusual in how the “emotional distress” or injury is debated. Usually, “independent examiners” are the ones to testify, and such persons often work for insurance companies, and a battle of psychological experts may ensue, but the arguments will be mainly settled by whether there is sufficient legal precedence (or a history of payouts) for damages similar to the case in question. If the person injured is partly to blame for not exercising due care, then the court may come back with a finding of contributory negligence, which exists when the plaintiff’s behavior is a proximate cause of their own injury.

STAGES IN THE MENTAL HEATH/JUSTICE PROCESS

A forensic psychologist can have their presence felt in today’s courtrooms either directly or indirectly. In civil cases, forensic psychologists are more likely to be involved indirectly, or behind the scenes. As experts who are likely be called to testify, like all experts, there will usually be depositions (statements taken before trial), and depositions form an important part of the written record in very early stages of a trial. Forensic psychologists need to be familiar with all the pretrial processes of a court system, and there are also many different kinds of courts. Where mental health issues are involved, sometimes the line between civil and criminal cases is blurred, and sometimes there is a back-and-forth intersection between state and federal courts, although whenever (as is often possible) a substantial federal question has been raised, the case may be heard in the federal courts. There are substantial backlogs of cases at all levels.

Some states even have specialized courts (e.g., family courts, drug courts, mental health courts, and domestic violence courts). While there is no accepted definition, mental health courts have been created by local initiatives, often adapting the model of drug courts, to obtain mental health treatment for persons with mental illness accused of crimes. Mental health courts generally handle clients who have consented to go to this specialized court or have pleaded guilty to a criminal offense, often a non-violent offense. Rather than sentence a defendant to jail time or prison, mental health courts mandate a treatment program that can include medication, case management, hospitalization or day treatment programs. Judicial personnel are specially trained in mental health courts, and it is the judge who frequently decides whether a person is making sufficient progress in their treatment. Clinicians sometimes argue that this is their responsibility, and there are other controversies over mental health courts, but the phenomenon has been catching on rapidly since 2003.

Mental health screening often begins at jail detention, with some jails using officers to perform this function, others using a psychologist on an as-needed basis, and others having their own psychologist on staff. A forensic psychologist is usually next involved with the system during the arraignment stage (where a plea of guilty, not guilty, or not guilty by reason of insanity is entered). If a NGRI plea is entered, the forensic psychologist is asked to examine the defendant and determine whether an insanity defense could be supported. The NGRI evaluation is different from attending to competency to plead guilty, which is another process, contrasted below:

• NGRI (Not Guilty by Reason of Insanity) — also called a CR (Criminal Responsibility) or MSO (Mental State at the time of Offense) evaluation; usually requested and/or arranged by the defense lawyer

• Competency to Plead Guilty — a separate inquiry into whether the defendant is competent to stand trial; usually requested by the judge, the prosecutor, or the defense lawyer

Other important pretrial stages include the evidence hearings (whether police have violated anyone’s rights in collecting evidence, also called a suppression hearing), the venue hearing (whether the trial should be moved to another locale because of pretrial publicity), the waiver hearing (whether a juvenile should be tried as an adult), the bail hearing (whether a person is so dangerous as to be denied bail), and the Daubert hearing (whether any scientific expertise to be used at trial meets standards of validity and reliability). Forensic psychologists may be involved in many of these pretrial hearings, and in addition, there are numerous “pretrial conferences” (usually in a judge’s chambers) where attempts will be made to mediate settlements. The discovery process (where each side shares evidence, files, witness lineups, and strategy) also may involve forensic psychologists.

At trial, lawyers may use a forensic psychologist to assist them with jury selection. In such cases, the psychologist is serving as a “jury consultant” and usually assists the lawyer with peremptory challenges (as opposed to challenges for cause). Also, during the trial, the psychologist may serve as a “trial consultant” who sometimes (or sometimes not) sits at the defense or prosecution table and conducts similar tasks, including but not limited to helping prepare the witnesses for their testimony. There are some controversies associated with these consulting duties, as follows:

Jury Consulting and Trial Consulting

There are two kinds of questions during the jury selection phase of voir dire. Each side, prosecution and defense, can ask an unlimited number of questions about anything that might bias the potential juror. These are known as challenges for cause. For example, a juror might be excused from duty if they say they were once a victim of a crime similar to the one in this case. Another type of question is called a peremptory challenge, and involves any subjective hunch or feeling that the juror just isn’t “right” for this case. The basis for asking such a question may only be known to the attorney asking it, but all the attorney has to say is they didn’t like the answer, and can have this juror excused from duty. Attorneys are only allowed a limited number of peremptory challenges, and often seek the advice of a “jury consultant” to make best use of these limited challenges.
Another issue deals with scientific jury selection, an emerging technique that allows lawyers to use correlation statistics from social science research to pick which type of juror would vote for conviction or acquittal. Wealthy defendants also use a technique called a shadow jury, which consists of persons privately hired who demographically match the real jurors, and the defense can try out various arguments on them as practice before going in front of the real jury. All these techniques, and many more involving consultants and presentation aids, fall into the emerging field of litigation support, for which companies like DOAR and DecisionQuest are industry leaders. Many critics have argued for replacing the lay person jury system with one characterized by professional jurors. In conjunction with improved technology, a professional jury system would go a long way at addressing numerous problems that courts presently face or will face in the future, such as the need for bilingual translators.

A forensic psychologist operates under a Code of Conduct which follows a presumption of release regarding any test data from any psychometric inventory given a client, but also permits the withholding of such data to protect against harm or the misrepresentation of that data. Some forensic psychologists find that the courts frequently misinterpret their data and/or the psychological research. This is particularly common where short, abridged reports (like the PSI or PreSentence Investigation) are involved. Typically, the probation officer who writes the PSI tries to “make sense” of the psychologist’s report or the results of psychological tests. In such cases, the psychologist has little recourse except to hope for an appeal (a prosecutor cannot appeal a not-guilty verdict, but can appeal a sentence considered too lenient). Appeals are rare (and even more rarely successful), but actually, a common basis for appeal involves the undue influence of a psychologist in the pretrial stage (usually unduly influencing the testimony of witnesses). However, forensic psychologists are more connected with the appellate stage through the filing of an “amicus curiae” (friend of the court) brief. In such documents, the psychologist hopes to set straight what social science or research knowledge really has to say about something. Amicus briefs are also frequently filed by professional organizations, speaking for the whole of their profession; e.g. the APA as a whole. A line of research since Grisso & Saks (1991) has shown that amicus briefs really do not have all that much influence in the legal process.

SPECIFIC FUNCTIONS OF A FORENSIC TRIAL PSYCHOLOGIST

Work as a trial consultant can be quite lucrative, and often the forensic psychologist is involved in high-profile, celebrity cases. It should be noted that people with degrees in other disciplines, most notably sociology, economics, political science, and criminal justice, also sometimes serve as trial consultants. Scientific jury selection, for example, may require conducting attitude surveys in the community, conducting sociodemographic “profiling” on prospective jurors, setting up focus groups, and/or helping with witness preparation. Because witness preparation is perhaps the most critical function, it has been analyzed in depth by Boccaccini (2002) and others, but little in known about it except the following three broad aspects of it:

• witness education — orients the witness to the courtroom process and reviews with them their previous statements to police or via depositions

• attorney education — allows the attorney to be totally and completely familiar with all information held by the witness so as to be not caught off guard

• modification of testimony delivery — involves helping the witness in such behaviors as speaking, dressing, and responding to the judge or responding during cross-examination

Sometimes, a forensic trial consultant receives funds not only from their high-profile, celebrity clients, but from supportive interest groups who donate money to the “cause.” This raises certain ethical questions, but the extent of this practice is unknown and unregulated (Strier 1999).

Expert testimony involves putting the forensic psychologist on the witness stand, and research has shown juries are most impressed by experts who have actual clinical experience rather than academic, research-based experience (Bartol & Bartol 2004). In other words, juries only usually believe experts who have actually worked with patients rather than those who have only engaged in academic studies. Practical experience, however, is only one of three components necessary to “qualify” or “certify” an expert at law. The other two components are advanced degree and licensing or certification (if relevant). Sometimes, the advanced degree component is the weakest component, as some forensic psychologists present credentials representing doctorates purchased from vanity, mail order, or less-than-ideally accredited institutions of higher education. This “false credentials” issue is raised from time to time, but again, the extent of it is unknown and nobody seems to want to do much about it.

The Daubert trilogy (referring to the three cases of Daubert v. Merrill Dow Pharmaceuticals 1993; General Electric v. Joiner 1997; and Kumho Tire v. Carmichael 1999) raises strict standards on the admissibility of scientific evidence, and controversy exists primarily between clinicians and researchers over how relevant the Daubert rules are. For example, controversies exist over how to score the Rorschach, how to measure intelligence, the reliability of eyewitness identification, the prejudicial impact of pretrial publicity, human perception and memory, the effects of divorce on children, and the lasting psychological effects of syndromes less than PTSD. Although only a few states strictly apply the Daubert standards, judges frequently apply it elsewhere whenever an attorney challenges the introduction of some evidence at the pretrial stage (Shuman & Sales 2001). Daubert requires judges and lawyers to master science as well as law, and in other jurisdictions, it is also not popular because it is costly and time-consuming.

Sometimes the cross-examination of an expert witness can be grueling, sharp, and even cruel. Being an expert witness is not for the faint of heart. The best advice that can be given to someone testifying as an expert witness is to avoid arrogance, confusion, hostility, and anxiety. An expert will be pushed to the limits of honoring their commitment to confidentiality (the law doesn’t recognize the patient-therapist privilege as absolute except in federal court), and if they were treating a patient who committed a crime, they might be charged with violating their duty to warn or protect (sometimes called theTarasoff requirement). Also, there is considerable debate about the wisdom of experts testifying about the “ultimate issue” in a case (e.g., is the person insane or not; which parent should be awarded custody; should the defendant be executed, etc.?) Typically, a forensic psychologist’s opinion isn’t presented so bluntly, but other forensic psychologists embrace testifying about the ultimate issue, and since the APA takes no side on the issue, the practice is neither encouraged nor discouraged. The risk assessment enterprise, however, is anything but blunt and definitive. For example, one NEVER hears a psychologist say “there’s a 65% chance the defendant will be violent upon release” or “on a scale of 1 to 10, he’s a 9” because such percentage estimates and numerical probabilities are simply the least used way of delivering assessment information. Far more common is a preference and custom among forensic psychologists to identify the significant risk factors along with specifying whatever interventions could reduce the risk, and the risk is usually presented in language such as “high, medium, or low.” Heilman et. al. (2000) have found in their research that an “actuarial” approach to communicating forensic psychology (based on what the norms of large samples would predict) is far superior (from a Daubert standpoint and less judgmental) than a “clinical” approach (based on what the expert has seen in their practice). However, the clinical-actuarial debate is likely to continue since judges and juries continue to be impressed by practitioners with personal experience who “tell it like it is” and speak their minds openly, often with all the attendant bias that comes with such an opinionated stance.

REFERENCES

Arrigo, B. (2000). Introduction to Forensic Psychology: Issues and Controversies in Crime and Justice. NY: Academic Press.

Bartol, C. & Bartol, A. (1999). “History of Forensic Psychology.” In I. Weiner & A. Hess (eds.) Handbook of Forensic Psychology. NY: Wiley.

Bartol, C. & Bartol, A. (2004). Introduction to Forensic Psychology. Thousand Oaks, CA: Sage.

Boccaccini, M. (2002). “What Do We Really Know about Witness Preparation.” Behavioral Sciences & the Law 20: 161-189.

Brodsky, S. (1991). Testifying in Court. Washington DC: APA.

Brodsky, S. (1999). The Expert Expert Witness. Washington DC: APA.

Goldkamp, J. & Irons-Guynn, C. (2000). Emerging Judicial Strategies for the Mentally Ill: Mental Health Courts. Washington DC: OJP. [available online]

Grisso, T. & Saks, M. (1991). “Psychology’s Influence on Constitutional Interpretation.” Law and Human Behavior 15: 205-211.

Heilbrun, K., O’Neill, M., Strohman, L., Bowman, Q. & Philipson, J. (2000). “Expert Approaches to Communicating Violence Risk.” Law and Human Behavior 24: 137-148.

Hess, A. (1999). “Serving as an Expert Witness.” In A. Hess & I. Weiner (eds.)Handbook of Forensic Psychology. NY: Wiley.

Kressel, N. & Kressel, D. (2001). Stack and Sway: The New Science of Jury Consulting. Boulder, CO: Westview.

Posey, A. & Wrightsman, L. (2005). Trial Consulting. NY: Oxford Univ. Press.

Ramsland, K. (2002). The Criminal Mind: A Writer’s Guide to Forensic Psychology. Cincinnati: Writer’s Digest Books. [author’s website]

Schuman, D. & Sales, B. (2001). “Daubert’s Wager.” Journal of Forensic Psychology Practice 1: 69-77.

Strier, F. (1999). “Whither Trial Consulting? Issues and Projections.” Law and Human Behavior 23: 93-115.

Towl, G. & D. Crighton. (1996). The Handbook of Psychology for Forensic Practitioners. NY: Routledge.

Walker, L. & Shapiro, D. (2004). Introduction to Forensic Psychology: Clinical and Social Psychological Perspectives. NY: Kluwer Academic/Plenum.

Wrightsman, L., M. Taflinger & M. Linsenman. (2000). Forensic Psychology. Belmont, CA: Wadsworth.

Ziskin, J. & Faust, D. (1994). Coping with Psychiatric and Psychological Testimony. Marina Del Rey, CA: Law and Psychology Press.

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