THE EXPERT WITNESS IN FORENSIC PSYCHIATRY David G . Chaplow, Janet L. Peters, Rob R.Kydd
Forensic psychiatry operates at the interface of the Justice and Healthsystems and has been defined as: “That branch of psychiatry which requires special knowledge and training in the law as it relates to the mental state of the offender, or alleged offender” [l]. As a consequence of working in this area, psychiatrists are often called into court to give evidence as “expert witnesses”. This article examines some of the professional and legal issues involved in providing expert testimony. Secondly, it aims to outline some practical guidelines for giving evidence in the court-room. The predominant focus is on criminal, rather than civil, proceedings in which the forensic psychiatrist gives expert testimony; however much of the information is also relevant to other psychiatrists and psychologists undertaking this role in the legal arena. Australian and New Zealand Journal of Psychiatry 1992; 26:624-630 For several centuries the courts have been accustomed to act on the opinion of experts. Bartholomew [2] notes that in England, as far back as 1553, Judge Saunders stated: “If matters arise in our law which concern other sciences or faculties we commonly apply for the aid of that science or faculty which it concerns.” The founding legal judgement is attributed to Lord Mansfield in Folkes v. Chadd (1782): “The opinion of scientific men upon proven facts may be given by men of science within their own science”[3]. The first appearance of psychiatrists as expert witnesses within the English legal system was at the end of the 18th Century [2]. Similarly, in the American Regional Forensic Services, Mental Health, Auckland Area Health Board, Carrington Hospital, Private Bag, Auckland, New Zealand David G. Chaplow MB, ChB, FRANZCP, Director Janet L. Peters MSocSci (Hons), Research Psychologist Department of Psychiatry and Behavioural Science, School of Medicine, University of Auckland, Private Bag, Auckland, New Zealand Rob. R. Kydd MB, ChB, PhD. FRANZCP, Senior Lecturer Correspond with Dr Chaplow
system psychiatrists were well established as experts by the middle of the 19th century. Little has been written regarding the emergence of psychiatric expert testimony in Australasia [4]. The Oxford Dictionary defines an “expert” as “a person with great knowledge or skill” [ 5 ] . The expert status of any individual psychiatrist or psychologist in the court-room is seen by Kennedy [6] to depend upon six personal resume factors: ( 1) professional qualifications; (2) clinical experience; (3) scholarship; (4) competence communicating in the court-room; (5) reputation; and (6) history as an expert witness. However, reality is such that the witness becomes an expert when the judge rules the person as such. From a legal viewpoint, expert evidence would seem to depend upon “scientific” opinions. The question immediately arises as to the scientific status of clinical psychiatry. Kenny [3] suggests four criteria for deciding whether a discipline is, or is not, a science: (1) the discipline must be consistent; ( 2 )the discipline must be methodical; (3) the discipline must be cumulative, and (4) the discipline must be predictive, and therefore falsifiable.
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Examining the above criteria in regard to clinical psychiatry, several problems become immediately evident. Firstly, it is not uncommon to see highly respected psychiatrists contradicting each other’s diagnoses and opinions in the court-room. Such inconsistencies occur not only in rare and difficult cases, but also in those which are typical of the disturbed offenders who come before the courts [2]. Secondly, the reliability and validity of clinical judgement depends on methodical use of the classification or diagnostic system employed. Confusion is engendered by the fact that although the official or statutory classification system for psychiatric disorders in Australasia is the International Classification of Diseases (ICD-9) Manual [ 7 ] , some Medical Schools emphasize the clinical use of the Diagnostic and Statistical Manual of Mental Disorders (DSM 111-R) [8]. Additionally, both these diagnostic systems are revised periodically. It has been suggested that this process of revision “little resembles the refinement of categories or cumulative gains common to advanced scientific fields” [9]. For example, amidst much debate, homosexuality was plucked from within the realms of mental illness in the DSM I1 into the realms of mental health [8]. In addition to these areas of clinical difficulty, four major problems in court practices and legal attitudes have been identified [ 101 which relate to the empirical debate. Firstly, judicial rulings have been made that many behavioural, emotional and mental health issues are susceptible to understanding by common knowledge, and are not subject to expert evaluation. Secondly, many judges and lawyers believe that psychiatry and psychology are “soft sciences”, without objective standards and reliable interpretations, highly uncertain and more intuitive and judgmental in reaching conclusions than the “hard” sciences. Such attitudes have led to comments such as that made by an American Judge that “Expert opinion, is only an ordinary guess in evening clothes ......”[21. Thirdly, there is research evidence to suggest that legal professionals may not be fully aware of the difference in training between psychiatrists and psychologists [ 1 11. Fourthly, there is a tendency of courts to assume that any well-trained psychiatrist/psychologist has knowledge and experience in the forensic and legal aspects of any criminal matter including mental health questions [lo]. Although moves are being made to initiate training in forensic psychiatry in New Zealand [ Mullen P: personal communication], little teaching
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appears to be offered in this area within psychology in New Zealand universities. Perhaps the most cogent point was made by Kenny [3] on the “scientific” question. He maintained that clinical and legal problems arose when clinical experts did not adhere to their academic and factual base; did not recognise where their expertise begins and ends: “What this shows, I believe, is not that psychiatrists are not men (sic) of science; but that in the case of psychiatry there is more than usual difficulty in deciding when men (sic) of science are testifying within their science; and when they are going beyond it” [ 31. Thus the task of the expert witness is not to make a legal decision, but to provide information so that the jury can make its decision [ 121.
Types of expert testimony Diamond [ 131 has distinguished two distinct types of legal situation involving testimony. The first, designated “clinical testimony”, is when a clinician has assessed or treated a patient in the normal and usual course of clinical practice, and a subsequent legal process has arisen because of some alleged action (criminal or civil) by the patient. The clinician may therefore be required to testify about clinical findings. The second, designated “forensic expert testimony”, is when the clinician is asked to perform an examination and to testify as an expert specifically for legal purposes. This latter designation also includes: ( I ) expert testimony that is based solely on theoretical and research information (i.e. “state-of-the-art” scientific data); (2) expert testimony in the form of assistance in the conduct of the case (e.g. observing the conduct of the examinations and cross-examinations in order to advise Counsel as to the case direction); and ( 3 )expert testimony in which the psychiatrist is asked to comment on other expert testimony without having had access to the accused (this situation may arise when the expert has been called by the Crown and has had access to the accused blocked by the defence). Within forensic expert testimony, the standards for according expert status may be reduced to two issues: ( 1 ) an expert must be able to state opinions within reasonable scientific (or medical or psychological) certainty; and (2) an expert should be able to help the judge and jury reach a more valid conclusion than would be possible without the expert’s testimony [9].
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Ethics: therapeutic v. legal roles Adherence to professional ethical codes avoids problems arising from role confusion. In the process of giving clinical testimony, the therapeutic role is clear and ethical obligations to the patient, with the possible exception of confidentiality, are not altered. With regard to confidentiality, an ethical dilemma arises when the legal request for records and testimony is made. In cases where the giving of such information would clearly compromise the therapeutic relationship, it is wise to request a subpoena [13]. Such a procedure then clarifies roles and signals (to the client) the legal onus to give testimony. Of note is the fact that there is no legal distinction between “official” and “unofficial” records. Thus, withholding or altering records is violating the oath “to tell the whole truth .....” and may result in a charge of perjury against the psychiatrist [ 131. Unlike clinical testimony, forensic expert testimony is utilised by the legal system solely for legal purposes, as opposed to therapeutic intent [ 131. The “client” now becomes the lawyer or court who requests the assessment and subsequent report, and pays for these accordingly. Thus, control over the information obtained during the clinical assessment is not retained by either the psychiatrist or the subject of the examination; instead, control passes to lawyers, to a court, or sometimes to a statutory agency. Diamond [ 131 states that if there is the slightest confusion in the mind of the person being assessed concerning the nature of the examination - therapeutic or forensic - grave ethical problems arise. For example, some alleged offenders may naively assume that anything a doctor does is therapeutic, that the court-appointed psychiatrist is there to help with the defence, and thus may divulge information against hisher best interests. There is a clear need to explain fully to the subject the purpose of the examination, the limits on confidentiality, who will have control of the information, and the role of the clinician in subsequent legal proceedings [ 131. Elucidation of further ethical issues has been eloquently undertaken by Stone [ 141. The roles of expert witnesses have been subject to some criticism in American psychiatric and legal literature. The professional and ethical issues subsumed in the testimony process are highlighted in the somewhat derisive description of Wasyliw, Cavanaugh and Rogers [I51 of forensic expert testimony roles. They describe four categories of “ex-
pert”. The first is the “Hired Gun”. This epithet captures the idea that an unscrupulous “expert” may, for the right financial incentive, testify according to the lawyer’s directives rather than adhering to the facts. The second is the “Advocate”. In essence, this description suggests that over time certain psychiatrists’ views on specific topics become widely known, thus a lawyer may choose the expert according to whether his or her firmly held opinion fits a particular case. The third category described is the “Impartial Expert”. This expert is seen as the true professional in that the role is one of neutrality, that is, a scientific “friend of the court” unswayed by lawyers’ wishes. The fourth category given is that of the “Ivory Tower” expert. This expert is seen as being theoretical, academic and removed from practical clinical issues.
The adversarial system Whether giving clinical testimony or forensic expert testimony, the expert witness becomes a participant in an adversarial system involving two sides: the Crown, and the Defence. As with the American and Australian legal systems, New Zealand law sets up two presumptions. The first is the presumption of sanity, or sound mind, unless rebutted by clear and credible evidence. The second is the presumption of innocence of crime. The onus is on the Crown to prove guilt “beyond all reasonable doubt”. In contrast the onus is on the Defence to demonstrate disability and/or mental illness and therefore eligibility for an insanity defence (in the case of the presence of mental illness). The Defence only has to prove insanity “on the balance of probabilities ”. It could be argued that for the adversarial system to function justly there needs to be an equality of ability to “prove”. For example, the present system in New Zealand may be seen to foster the distinction between the “practice of Law”; and, the “upholding of Justice.” One author has observed: “It often seems that the more ethical, cautious, and professionally skilled the psychiatrist, the less hisher evaluations are welcome in the court-room where certainty and a willingness to play the adversarial game are attributes most valued by those in the legal arena”[lO]. Reports may be requested by either Crown or Defence as part of the adversarial process, or may be requested by the Court.
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The power of the courts to request a psychiatric report Jurisdictions across Australasia vary [4]. In New Zealand, the Criminal Justice Act [ 161 and the Mental Health Act [ 171 are under review, however provisions governing Court requests for psychiatric reports are expected to remain the same. Psychiatric reports may be requested by the Crown or Defence in order to assist the Court in determining if the defendant is under disability or insane. For example, in New Zealand the section of the Criminal Justice Act governing disability states that: “For the purposes of this part of this act, a person is under disability, if, because of the extent to which that person is mentally disordered, that person is unable to: (a) plead; or (b) to understand the nature and purpose of the proceedings; (c) to communicate adequately with Counsel for the purposes of conducting a defence” [ 161. Generally, if a definition of mental disorder exists it is fairly similar across Australasian Acts. Again, using the New Zealand Mental Health Act [I71 as an example, the interpretation of “mentally disordered” is: (a) mentally ill - that is, requiring care and treatment for a mental illness, e.g. schizophrenia; (b) mentally infirm - that is, requiring care and treatment by reason of mental infirmity arising from age or deterioration or injury to the brain, e.g. dementia; (c) mentally sub-normal - that is suffering from sub-normality of intelligence as a result of arrested or incomplete development of mind, e.g. intellectual handicap. Regarding the matter of insanity, the psychiatrist’s report must address issues of: (a) presence or absence of “natural imbecility” or disease of the mind; (b) of understanding the nature and quality of the act or omission: or (c) of knowing that the act or omission was morally wrong having regard to the commonly accepted standards of right and wrong. In addition, for persons who have been convicted, psychiatric reports may also address issues regarding the type and nature of possible sentences. The psychiatric issues subsumed under criminaljustice legislation are complex. For example, the distinction must be made between the defendant being legally insane at the time of the offence and/or having ongoing mental illness. This distinction is relevant in respect to the notion ofjustice and with respect to the appropriate placement of the individual (i.e. in prison, or in a psychiatric hospital).
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Practical guidelinesfor forensic expert witnesses “The Perfect Expert Witness is fair of face, clad in magical raiments, and blessed with a voice the very sound of which draws the listener to hearken and drink the words like a bee draws nectar” (Adams J: unpublished data). Ordinary mortals may, however, find the following practical guidelines of use. Areas covered are report writing, preparation for testimony, and performance in the witness stand.
The report Evidence-in-chief is all the evidence of a witness that counsel wishes to give. Evidence-in-chief is usually in written form such as an affidavit (sworn statement) or a report which is confirmed in evidence. The report may be available to the requesting Counsel, Judge, opposing Counsel, and Defendant. Every word needs to be defensible. Several authors present reportwriting-guidelines [ 2 , 10, 18, 191. Kennedy [6] notes that information obtained in reports is usually based on two sets of data: first-hand data (clinical interview and psychometric testing); and second-hand data (other written records, scientific literature). Clinical observations most frequently used in expert testimony to lay the foundation for later opinions include observations of: affect, language style, mannerisms, interactive style, and stigmata. Formal clinical assessment of orientation, memory, specific skills and/or physical limitations to daily functioning should also be noted. Psychometric testing is generally the province of psychologists, the results of which may be included in the report to the court. Generally, tests may cover three areas of human performance: ( I ) intellectual functioning; ( 2 ) neuropsychological functioning; and ( 3 ) personality. In practice, in New Zealand, the former two areas are the most widely assessed in forensic work, with the results of personality tests (particularly projective tests) less widely accepted as strong expert testimony (Merrick P: personal communication). Projective tests may be seen to “fill in the picture and extend it, but they do not define it” [6]. An objective method of examining fitness to stand trial has been developed by psychologists in Canada (201, but does not appear to be used as an assessment tool in New Zealand or Australia. Reports will vary depending on the brief given by Counsel. The clinician should be briefed as to: ( I ) whether or not the client has pleaded. In cases of “no
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plea” or a plea of “not guilty” a report detailing the subject matter of the “alleged offence” may prejudice the Defence; and (2) whether he/she is required in Court (not required in the majority of remand reports and in some pre-sentencing reports). In these cases, the report will focus on the issues of disability, the presence or absence of mental illness, and the possible relationship of illness to alleged offence. In report writing, practices to avoid include the following. Firstly, complex psychodynamic formulations of subject’s behaviour should be used sparingly. For example, whilst the clinician may view the client’s predilection for exposing himself in terms of “castration anxiety”, it may be difficult for a lawyer and/or judge to understand such a formulation. Secondly, psychological/psychiatric jargon should be avoided. A local Auckland Judge recently commented on the language used in reports: “While a certain amount of technical and medical language and terminology is inevitable, some medical jargonese can defeat even the keenest mind” [Treston P: unpublished data]. In a recent survey of Auckland Judges regarding the quality of psychiatric reports [Peters J, Chaplow D: unpublished data] it was found that judges wanted medical terminology explained in understandable language; it follows that lawyers and jury members would wish for the same. Thirdly, facile over-generalisations are unhelpful. For example: “He committed the crime because of his deprived upbringing”. A judge and jury members who may have had a deprived upbringings may not be impressed! Fourthly, perjorative terminology (e.g. “ c o m pen sat i on ne u ro s i s ” , “ wharf i e s ’ back ” , “psychopath”) should not be used. Fifthly, the use of hearsay is not acceptable. For example, if the offender had stated “My father is an alcoholic”, it is important to report “He/she said that ....” or “He/she alleged that....”; unless you have first hand knowledge of the facts, and know this to be true [Wareing C: unpublished data]. Sixthly, confusing “fact” with “opinion” should be avoided. Generally, the bulk of a report contains the facts (i.e. clinical observations, results of psychometric tests, and previously documented clinical data). The final section of a report is entitled “Opinion” in order to differentiate it from the facts [181. The “opinion” section should give the opinion (depending on the case), as to whether the defendant is under disability or mentally ill, and/or recommend a course of appropriate action if relevant.
Testimonial preparation Particularly important in forensic expert testimony is the preparation before taking the witness box. Matters which may be itemised in terms of time charged at a standard rate include: ( 1) discussion with lawyers; (2) review of records (e.g. medical files, affidavits, scientific literature); (3) interviews with offender and significant others; (4) preparation of report; (5) travel time: and (6) time spent in court (waiting to appear, presentation in stand) [21]. The psychiatrist first needs a written brief from the lawyer or court. This brief should include specific questions which the clinician is asked to address; it may also clarify points of law [21]. Secondly, the clinician needs to allocate time for pretrial conferences with the lawyer/counsel. Curran [ 101 notes that most of the serious problems encountered as an expert witness are the result of inadequate pretrial consultation on the specific areas to be covered in direct examination. These authors suggest that the length of time needed for pretrial consultation may vary, depending on the weight given to the following factors: firstly, the familiarity, or lack of it, in working together of the forensic expert and the trial counsel; secondly, the complexity of the scientific, technical and clinical issues involved in the case and the relative need to educate trial counsel to put these issues into questions and answers understandable to court and jury; and thirdly, the need to anticipate and prepare for vigorous cross-examination of the forensic expert. Writers in the area suggest that it is useful for expert witnesses to undergo total “immersion” during the final hours before the case: to literally steep in the case [6, 191. Such immersion may include reading the file, anticipating the questions, planning answers, consulting with colleagues, and finding a quiet corner in the court-house in which to consolidate one’s thoughts.
In the witness box A witness in court swears or makes an affirmation to tell “The truth, the whole truth and nothing but the truth.” A witness cannot initiate extra evidence (further to the report i.e. the evidence-in-chief) but can only answer questions asked by lawyers. Thus the oath really relates to telling “The truth, the whole truth and nothing but the truth” about the questions asked. Lawyers choose their questions and thereby limit the areas of evidence. Once sworn in as an expert witness.
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the clinician’s allegiance is only to the Court (not to the lawyer, or patient/defendant) [Adams J: unpublished data]. The witness is asked to state hisher name, qualifications, and experience; that is, to outline how his/her knowledge and skills relate to the matter in hand. Such statements should be clear, succinct, and imparted in an authoritative manner. All verbal communications should be directed primarily to the jury. In direct examination. the expert is taken sympathetically through the report by the side (Crown or Defence) who requested hisher report/appearance. Typical questions may include: when did you examine the defendant? how often did you interview him/her? what was the duration of the examination? what were the assessment procedures? what were your findings? The use of simple, common language, taking care to ensure that issues are competently but simply stated, is the key to effective communication whilst in the witness box [6]. The cross-examination by the opposing lawyer is not conducted in order to discover “The Truth”; it is conducted to advance his/her client’s case [Adams J: unpublished data] by attempting to present plausible alternative explanations for the defendant’s behaviour [ 191. Tactics employed in this process include attacks on qualifications and/or experience: allegations of faulty reasoning. incompetent methodology: or attempts to undermine the evidenceheport by contrasting it with other expert or factual evidence. Thirteen steps to competent performance in this potentially anxiety-producing situation are outlined in Appendix I.
Conclusions The purpose of this article is twofold. Firstly to elucidate some of the issues and associated problems involved in being an expert witness in forensic psychiatry in New Zealand. Secondly. to outline some practical guidelines for psychiatrists who are called upon to give expert evidence, whether clinical testimony, or forensic expert testimony. In attempting to address some of the professional problems arising, three areas appear to require attention. Firstly, we believe it is necessary to re-emphasise Kenny’s [3] notion; that is, it is important that the expert witness testifies “within hisher science” when in the witness box. Secondly, in order to foster understanding among those working at the interface of Jus-
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tice and Health, it would appear useful for the psychiatrist to have a firm grounding in the basics of law. Thirdly, justification for the admission of expert evidence seems to come from legal documentation. Carefully designed research examining clinical issues in forensic psychiatry needs to be conducted in order that we might know the boundaries and limitations of our science.
Acknowledgements The authors would like to thank Gillian Davies for typing this manuscript and the Oakley Hospital Research Foundation for its ongoing assistance.
References Mason KH. Report of the committee of inquiry into procedure5 used in certain psychiatric hocpitals in relation to admission. discharge or release on leave of certain c l a s m of psychiatric patients. Wellington: New Zealand Department of Health. 1988. 2. Bartholomew AA. The criminal law and corrections. Victoria: Wileman, 1986. 3 . Kenny A. The expert in court. In: Baker PV. ed. The Law Quarterly Review. Vol. 99. London: Stevens. 1983. 4. Campbell IG. Mental disorder and criminal law in Australia and New Zealand. Sydney : Butterworth. 1988. 5. Hawkins JM. The Oxford paperback dictionary. Oxford: Oxford University Press, 1979. 6. Kennedy WA. The psychologist as expert witness. I n : Curran WJ. McGarry AL. Shah SA. eds. Forensic psychiatry and psychology: perspectives and standards for interdisciplinary practice. Philadelphia: FA Davis. 1986. 7. International classification of diseases. 9th ed. Geneva: World Health Organisation. 1978. 8. Diagnostic and statistical manual of mental disorders. 3rd ed. Washington: American Psychiatric Association. 1980. 9. Faust D. Ziskin J. The expert witness in psychology and psychiatry. Science 1988; 3:31-35. 10. Curran WJ. Hyg SM. McGarry AL. The psychiatri\t as expert witness. In: Curran WJ. McGarry AL. Shah SA. ed\. Forensic psychiatry and psychology: perspectives and standard5 for interdisciplinary practice. Philadelphia: FA Davis. 1986. I I . Yarmey AD. Popiel PK. Judged value of medical versus psychological expert witnesses. International Journal of Law and Psychiatry 1988; I I : 195-204. 12. Maloney MP. Ward MP. Psychological assessment. New York: Oxford University Pres5. 1976. 13. Diamond BL. The psychiatri5t as expert witness. In: Sadoff RL. ed. The Psychiatric Clinics of North America: Symposium of foren5ic psychiatry. Philadelphia: Saunders. 1983. 14. Stone AD. Law. psychiatry and morality. Washington: American Psychiatric Press. 1984. IS.Wasyliw OE. Cavanaugh JL. Rogers R. Beyond the wentific limits of the expert testimony. Bulletin of the American Academy ofpsychiatry and the Law 1985: 13: 147-158. I.
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16 The Criminal Justice Act. 1985. Department of Justice. New
Zealand Government. 17. The Mental Health Act 1969. Department of Health, New Zealand Government. 18. Faulk M. Basic forensic psychiatry. Oxford: Blackwell Scientific, 1988. 19. Sadoff RL. Forensic psychiatry: a practical guide for lawyers and psychiatrists. Springfield. Illinois: Charles C Thomas, 1988.
20 Roesch R. Webster CD, Eaves D. The fitness interview test: a method for examining fitness to stand trial. Toronto: University of Toronto and Simon Fraser University. 1984. 2 1 , Guidelines for psychiatrists in relation to family court proceedings. News and Notes, Royal Australia and New Zealand College of Psychiatrists. 1990; 23: 25 - 29.
Appendix 1 1. Remember, you are not on trial. 2. Be honest; if you don’t know, say so. 3.Refuse to give opinions in areas outside your expertise. 4. Listen to questions, take time to consider, then answer succinctly or request for the question to be repeatedklarified. 5. Pause before answering in order to give your lawyer the opportunity to object to the enquiry if it is improper [lo]. 6. Give specific examples of behaviour under question. 7. Have all relevant written material with you on the stand, e.g. a copy of your report; a brief summary of scientific literature; and/or reliability, validity and normative data on psychometric tests used. 8. Be familiar with state-of-the-art literature on the area. If there are varying schools of thought on a relevant factor, be prepared to give a brief resume of the differences. For novice witnesses, familiarity with the literature may (a) give one confidence in the stand; and (b) further one’s own learning. 9.Be able to define and explain psychiatric/psychologicalterminology in lay-persons’ language. Confusing terminology and verbosity often diminish the impact of evidence [21]. 10. If the witness feels that the cross-examining lawyer is arguing, attacking unfairly, or using overly emotive tactics, he or she should feel free to point this out to the Judge [19]. 1 1. If the cross-examining lawyer finds logical evidence and sound psychiatric/psychological thinking to challenge the expert’s testimony, it behoves the witness to carefully reconsider hidher original opinion [19]. In this situation, two extremes to avoid are: (a) immediately disavowing one’s previous opinion; or, (b) stubbornly adhering to one’s opinion in the face of overwhelming evidence to the contrary: “flexibility without fragility is the key” [19]. 12.Be prepared for the “hypothetical question” as it is often used as a cross-examination tactic. This involves the reiteration of all the relevant facts that have been introduced as evidence, and/or evidence that will subsequently be introduced [19].The witness should (as for 10 above) simply evaluate hidher opinion in light of the new evidence. 13.Be humble. “Feelings of omnipotence and omniscience should be left in the office, along with narcissism” [19].
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Forensic psychiatry operates at the interface of the Justice and Healthsystems and has been defined as: “That branch of psychiatry which requires special knowledge and training in the law as it relates to the mental state of the offender, or alleged offender” [l]. As a consequence of working in this area, psychiatrists are often called into court to give evidence as “expert witnesses”. This article examines some of the professional and legal issues involved in providing expert testimony. Secondly, it aims to outline some practical guidelines for giving evidence in the court-room. The predominant focus is on criminal, rather than civil, proceedings in which the forensic psychiatrist gives expert testimony; however much of the information is also relevant to other psychiatrists and psychologists undertaking this role in the legal arena. Australian and New Zealand Journal of Psychiatry 1992; 26:624-630 For several centuries the courts have been accustomed to act on the opinion of experts. Bartholomew [2] notes that in England, as far back as 1553, Judge Saunders stated: “If matters arise in our law which concern other sciences or faculties we commonly apply for the aid of that science or faculty which it concerns.” The founding legal judgement is attributed to Lord Mansfield in Folkes v. Chadd (1782): “The opinion of scientific men upon proven facts may be given by men of science within their own science”[3]. The first appearance of psychiatrists as expert witnesses within the English legal system was at the end of the 18th Century [2]. Similarly, in the American Regional Forensic Services, Mental Health, Auckland Area Health Board, Carrington Hospital, Private Bag, Auckland, New Zealand David G. Chaplow MB, ChB, FRANZCP, Director Janet L. Peters MSocSci (Hons), Research Psychologist Department of Psychiatry and Behavioural Science, School of Medicine, University of Auckland, Private Bag, Auckland, New Zealand Rob. R. Kydd MB, ChB, PhD. FRANZCP, Senior Lecturer Correspond with Dr Chaplow
system psychiatrists were well established as experts by the middle of the 19th century. Little has been written regarding the emergence of psychiatric expert testimony in Australasia [4]. The Oxford Dictionary defines an “expert” as “a person with great knowledge or skill” [ 5 ] . The expert status of any individual psychiatrist or psychologist in the court-room is seen by Kennedy [6] to depend upon six personal resume factors: ( 1) professional qualifications; (2) clinical experience; (3) scholarship; (4) competence communicating in the court-room; (5) reputation; and (6) history as an expert witness. However, reality is such that the witness becomes an expert when the judge rules the person as such. From a legal viewpoint, expert evidence would seem to depend upon “scientific” opinions. The question immediately arises as to the scientific status of clinical psychiatry. Kenny [3] suggests four criteria for deciding whether a discipline is, or is not, a science: (1) the discipline must be consistent; ( 2 )the discipline must be methodical; (3) the discipline must be cumulative, and (4) the discipline must be predictive, and therefore falsifiable.
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Examining the above criteria in regard to clinical psychiatry, several problems become immediately evident. Firstly, it is not uncommon to see highly respected psychiatrists contradicting each other’s diagnoses and opinions in the court-room. Such inconsistencies occur not only in rare and difficult cases, but also in those which are typical of the disturbed offenders who come before the courts [2]. Secondly, the reliability and validity of clinical judgement depends on methodical use of the classification or diagnostic system employed. Confusion is engendered by the fact that although the official or statutory classification system for psychiatric disorders in Australasia is the International Classification of Diseases (ICD-9) Manual [ 7 ] , some Medical Schools emphasize the clinical use of the Diagnostic and Statistical Manual of Mental Disorders (DSM 111-R) [8]. Additionally, both these diagnostic systems are revised periodically. It has been suggested that this process of revision “little resembles the refinement of categories or cumulative gains common to advanced scientific fields” [9]. For example, amidst much debate, homosexuality was plucked from within the realms of mental illness in the DSM I1 into the realms of mental health [8]. In addition to these areas of clinical difficulty, four major problems in court practices and legal attitudes have been identified [ 101 which relate to the empirical debate. Firstly, judicial rulings have been made that many behavioural, emotional and mental health issues are susceptible to understanding by common knowledge, and are not subject to expert evaluation. Secondly, many judges and lawyers believe that psychiatry and psychology are “soft sciences”, without objective standards and reliable interpretations, highly uncertain and more intuitive and judgmental in reaching conclusions than the “hard” sciences. Such attitudes have led to comments such as that made by an American Judge that “Expert opinion, is only an ordinary guess in evening clothes ......”[21. Thirdly, there is research evidence to suggest that legal professionals may not be fully aware of the difference in training between psychiatrists and psychologists [ 1 11. Fourthly, there is a tendency of courts to assume that any well-trained psychiatrist/psychologist has knowledge and experience in the forensic and legal aspects of any criminal matter including mental health questions [lo]. Although moves are being made to initiate training in forensic psychiatry in New Zealand [ Mullen P: personal communication], little teaching
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appears to be offered in this area within psychology in New Zealand universities. Perhaps the most cogent point was made by Kenny [3] on the “scientific” question. He maintained that clinical and legal problems arose when clinical experts did not adhere to their academic and factual base; did not recognise where their expertise begins and ends: “What this shows, I believe, is not that psychiatrists are not men (sic) of science; but that in the case of psychiatry there is more than usual difficulty in deciding when men (sic) of science are testifying within their science; and when they are going beyond it” [ 31. Thus the task of the expert witness is not to make a legal decision, but to provide information so that the jury can make its decision [ 121.
Types of expert testimony Diamond [ 131 has distinguished two distinct types of legal situation involving testimony. The first, designated “clinical testimony”, is when a clinician has assessed or treated a patient in the normal and usual course of clinical practice, and a subsequent legal process has arisen because of some alleged action (criminal or civil) by the patient. The clinician may therefore be required to testify about clinical findings. The second, designated “forensic expert testimony”, is when the clinician is asked to perform an examination and to testify as an expert specifically for legal purposes. This latter designation also includes: ( I ) expert testimony that is based solely on theoretical and research information (i.e. “state-of-the-art” scientific data); (2) expert testimony in the form of assistance in the conduct of the case (e.g. observing the conduct of the examinations and cross-examinations in order to advise Counsel as to the case direction); and ( 3 )expert testimony in which the psychiatrist is asked to comment on other expert testimony without having had access to the accused (this situation may arise when the expert has been called by the Crown and has had access to the accused blocked by the defence). Within forensic expert testimony, the standards for according expert status may be reduced to two issues: ( 1 ) an expert must be able to state opinions within reasonable scientific (or medical or psychological) certainty; and (2) an expert should be able to help the judge and jury reach a more valid conclusion than would be possible without the expert’s testimony [9].
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Ethics: therapeutic v. legal roles Adherence to professional ethical codes avoids problems arising from role confusion. In the process of giving clinical testimony, the therapeutic role is clear and ethical obligations to the patient, with the possible exception of confidentiality, are not altered. With regard to confidentiality, an ethical dilemma arises when the legal request for records and testimony is made. In cases where the giving of such information would clearly compromise the therapeutic relationship, it is wise to request a subpoena [13]. Such a procedure then clarifies roles and signals (to the client) the legal onus to give testimony. Of note is the fact that there is no legal distinction between “official” and “unofficial” records. Thus, withholding or altering records is violating the oath “to tell the whole truth .....” and may result in a charge of perjury against the psychiatrist [ 131. Unlike clinical testimony, forensic expert testimony is utilised by the legal system solely for legal purposes, as opposed to therapeutic intent [ 131. The “client” now becomes the lawyer or court who requests the assessment and subsequent report, and pays for these accordingly. Thus, control over the information obtained during the clinical assessment is not retained by either the psychiatrist or the subject of the examination; instead, control passes to lawyers, to a court, or sometimes to a statutory agency. Diamond [ 131 states that if there is the slightest confusion in the mind of the person being assessed concerning the nature of the examination - therapeutic or forensic - grave ethical problems arise. For example, some alleged offenders may naively assume that anything a doctor does is therapeutic, that the court-appointed psychiatrist is there to help with the defence, and thus may divulge information against hisher best interests. There is a clear need to explain fully to the subject the purpose of the examination, the limits on confidentiality, who will have control of the information, and the role of the clinician in subsequent legal proceedings [ 131. Elucidation of further ethical issues has been eloquently undertaken by Stone [ 141. The roles of expert witnesses have been subject to some criticism in American psychiatric and legal literature. The professional and ethical issues subsumed in the testimony process are highlighted in the somewhat derisive description of Wasyliw, Cavanaugh and Rogers [I51 of forensic expert testimony roles. They describe four categories of “ex-
pert”. The first is the “Hired Gun”. This epithet captures the idea that an unscrupulous “expert” may, for the right financial incentive, testify according to the lawyer’s directives rather than adhering to the facts. The second is the “Advocate”. In essence, this description suggests that over time certain psychiatrists’ views on specific topics become widely known, thus a lawyer may choose the expert according to whether his or her firmly held opinion fits a particular case. The third category described is the “Impartial Expert”. This expert is seen as the true professional in that the role is one of neutrality, that is, a scientific “friend of the court” unswayed by lawyers’ wishes. The fourth category given is that of the “Ivory Tower” expert. This expert is seen as being theoretical, academic and removed from practical clinical issues.
The adversarial system Whether giving clinical testimony or forensic expert testimony, the expert witness becomes a participant in an adversarial system involving two sides: the Crown, and the Defence. As with the American and Australian legal systems, New Zealand law sets up two presumptions. The first is the presumption of sanity, or sound mind, unless rebutted by clear and credible evidence. The second is the presumption of innocence of crime. The onus is on the Crown to prove guilt “beyond all reasonable doubt”. In contrast the onus is on the Defence to demonstrate disability and/or mental illness and therefore eligibility for an insanity defence (in the case of the presence of mental illness). The Defence only has to prove insanity “on the balance of probabilities ”. It could be argued that for the adversarial system to function justly there needs to be an equality of ability to “prove”. For example, the present system in New Zealand may be seen to foster the distinction between the “practice of Law”; and, the “upholding of Justice.” One author has observed: “It often seems that the more ethical, cautious, and professionally skilled the psychiatrist, the less hisher evaluations are welcome in the court-room where certainty and a willingness to play the adversarial game are attributes most valued by those in the legal arena”[lO]. Reports may be requested by either Crown or Defence as part of the adversarial process, or may be requested by the Court.
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The power of the courts to request a psychiatric report Jurisdictions across Australasia vary [4]. In New Zealand, the Criminal Justice Act [ 161 and the Mental Health Act [ 171 are under review, however provisions governing Court requests for psychiatric reports are expected to remain the same. Psychiatric reports may be requested by the Crown or Defence in order to assist the Court in determining if the defendant is under disability or insane. For example, in New Zealand the section of the Criminal Justice Act governing disability states that: “For the purposes of this part of this act, a person is under disability, if, because of the extent to which that person is mentally disordered, that person is unable to: (a) plead; or (b) to understand the nature and purpose of the proceedings; (c) to communicate adequately with Counsel for the purposes of conducting a defence” [ 161. Generally, if a definition of mental disorder exists it is fairly similar across Australasian Acts. Again, using the New Zealand Mental Health Act [I71 as an example, the interpretation of “mentally disordered” is: (a) mentally ill - that is, requiring care and treatment for a mental illness, e.g. schizophrenia; (b) mentally infirm - that is, requiring care and treatment by reason of mental infirmity arising from age or deterioration or injury to the brain, e.g. dementia; (c) mentally sub-normal - that is suffering from sub-normality of intelligence as a result of arrested or incomplete development of mind, e.g. intellectual handicap. Regarding the matter of insanity, the psychiatrist’s report must address issues of: (a) presence or absence of “natural imbecility” or disease of the mind; (b) of understanding the nature and quality of the act or omission: or (c) of knowing that the act or omission was morally wrong having regard to the commonly accepted standards of right and wrong. In addition, for persons who have been convicted, psychiatric reports may also address issues regarding the type and nature of possible sentences. The psychiatric issues subsumed under criminaljustice legislation are complex. For example, the distinction must be made between the defendant being legally insane at the time of the offence and/or having ongoing mental illness. This distinction is relevant in respect to the notion ofjustice and with respect to the appropriate placement of the individual (i.e. in prison, or in a psychiatric hospital).
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Practical guidelinesfor forensic expert witnesses “The Perfect Expert Witness is fair of face, clad in magical raiments, and blessed with a voice the very sound of which draws the listener to hearken and drink the words like a bee draws nectar” (Adams J: unpublished data). Ordinary mortals may, however, find the following practical guidelines of use. Areas covered are report writing, preparation for testimony, and performance in the witness stand.
The report Evidence-in-chief is all the evidence of a witness that counsel wishes to give. Evidence-in-chief is usually in written form such as an affidavit (sworn statement) or a report which is confirmed in evidence. The report may be available to the requesting Counsel, Judge, opposing Counsel, and Defendant. Every word needs to be defensible. Several authors present reportwriting-guidelines [ 2 , 10, 18, 191. Kennedy [6] notes that information obtained in reports is usually based on two sets of data: first-hand data (clinical interview and psychometric testing); and second-hand data (other written records, scientific literature). Clinical observations most frequently used in expert testimony to lay the foundation for later opinions include observations of: affect, language style, mannerisms, interactive style, and stigmata. Formal clinical assessment of orientation, memory, specific skills and/or physical limitations to daily functioning should also be noted. Psychometric testing is generally the province of psychologists, the results of which may be included in the report to the court. Generally, tests may cover three areas of human performance: ( I ) intellectual functioning; ( 2 ) neuropsychological functioning; and ( 3 ) personality. In practice, in New Zealand, the former two areas are the most widely assessed in forensic work, with the results of personality tests (particularly projective tests) less widely accepted as strong expert testimony (Merrick P: personal communication). Projective tests may be seen to “fill in the picture and extend it, but they do not define it” [6]. An objective method of examining fitness to stand trial has been developed by psychologists in Canada (201, but does not appear to be used as an assessment tool in New Zealand or Australia. Reports will vary depending on the brief given by Counsel. The clinician should be briefed as to: ( I ) whether or not the client has pleaded. In cases of “no
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plea” or a plea of “not guilty” a report detailing the subject matter of the “alleged offence” may prejudice the Defence; and (2) whether he/she is required in Court (not required in the majority of remand reports and in some pre-sentencing reports). In these cases, the report will focus on the issues of disability, the presence or absence of mental illness, and the possible relationship of illness to alleged offence. In report writing, practices to avoid include the following. Firstly, complex psychodynamic formulations of subject’s behaviour should be used sparingly. For example, whilst the clinician may view the client’s predilection for exposing himself in terms of “castration anxiety”, it may be difficult for a lawyer and/or judge to understand such a formulation. Secondly, psychological/psychiatric jargon should be avoided. A local Auckland Judge recently commented on the language used in reports: “While a certain amount of technical and medical language and terminology is inevitable, some medical jargonese can defeat even the keenest mind” [Treston P: unpublished data]. In a recent survey of Auckland Judges regarding the quality of psychiatric reports [Peters J, Chaplow D: unpublished data] it was found that judges wanted medical terminology explained in understandable language; it follows that lawyers and jury members would wish for the same. Thirdly, facile over-generalisations are unhelpful. For example: “He committed the crime because of his deprived upbringing”. A judge and jury members who may have had a deprived upbringings may not be impressed! Fourthly, perjorative terminology (e.g. “ c o m pen sat i on ne u ro s i s ” , “ wharf i e s ’ back ” , “psychopath”) should not be used. Fifthly, the use of hearsay is not acceptable. For example, if the offender had stated “My father is an alcoholic”, it is important to report “He/she said that ....” or “He/she alleged that....”; unless you have first hand knowledge of the facts, and know this to be true [Wareing C: unpublished data]. Sixthly, confusing “fact” with “opinion” should be avoided. Generally, the bulk of a report contains the facts (i.e. clinical observations, results of psychometric tests, and previously documented clinical data). The final section of a report is entitled “Opinion” in order to differentiate it from the facts [181. The “opinion” section should give the opinion (depending on the case), as to whether the defendant is under disability or mentally ill, and/or recommend a course of appropriate action if relevant.
Testimonial preparation Particularly important in forensic expert testimony is the preparation before taking the witness box. Matters which may be itemised in terms of time charged at a standard rate include: ( 1) discussion with lawyers; (2) review of records (e.g. medical files, affidavits, scientific literature); (3) interviews with offender and significant others; (4) preparation of report; (5) travel time: and (6) time spent in court (waiting to appear, presentation in stand) [21]. The psychiatrist first needs a written brief from the lawyer or court. This brief should include specific questions which the clinician is asked to address; it may also clarify points of law [21]. Secondly, the clinician needs to allocate time for pretrial conferences with the lawyer/counsel. Curran [ 101 notes that most of the serious problems encountered as an expert witness are the result of inadequate pretrial consultation on the specific areas to be covered in direct examination. These authors suggest that the length of time needed for pretrial consultation may vary, depending on the weight given to the following factors: firstly, the familiarity, or lack of it, in working together of the forensic expert and the trial counsel; secondly, the complexity of the scientific, technical and clinical issues involved in the case and the relative need to educate trial counsel to put these issues into questions and answers understandable to court and jury; and thirdly, the need to anticipate and prepare for vigorous cross-examination of the forensic expert. Writers in the area suggest that it is useful for expert witnesses to undergo total “immersion” during the final hours before the case: to literally steep in the case [6, 191. Such immersion may include reading the file, anticipating the questions, planning answers, consulting with colleagues, and finding a quiet corner in the court-house in which to consolidate one’s thoughts.
In the witness box A witness in court swears or makes an affirmation to tell “The truth, the whole truth and nothing but the truth.” A witness cannot initiate extra evidence (further to the report i.e. the evidence-in-chief) but can only answer questions asked by lawyers. Thus the oath really relates to telling “The truth, the whole truth and nothing but the truth” about the questions asked. Lawyers choose their questions and thereby limit the areas of evidence. Once sworn in as an expert witness.
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the clinician’s allegiance is only to the Court (not to the lawyer, or patient/defendant) [Adams J: unpublished data]. The witness is asked to state hisher name, qualifications, and experience; that is, to outline how his/her knowledge and skills relate to the matter in hand. Such statements should be clear, succinct, and imparted in an authoritative manner. All verbal communications should be directed primarily to the jury. In direct examination. the expert is taken sympathetically through the report by the side (Crown or Defence) who requested hisher report/appearance. Typical questions may include: when did you examine the defendant? how often did you interview him/her? what was the duration of the examination? what were the assessment procedures? what were your findings? The use of simple, common language, taking care to ensure that issues are competently but simply stated, is the key to effective communication whilst in the witness box [6]. The cross-examination by the opposing lawyer is not conducted in order to discover “The Truth”; it is conducted to advance his/her client’s case [Adams J: unpublished data] by attempting to present plausible alternative explanations for the defendant’s behaviour [ 191. Tactics employed in this process include attacks on qualifications and/or experience: allegations of faulty reasoning. incompetent methodology: or attempts to undermine the evidenceheport by contrasting it with other expert or factual evidence. Thirteen steps to competent performance in this potentially anxiety-producing situation are outlined in Appendix I.
Conclusions The purpose of this article is twofold. Firstly to elucidate some of the issues and associated problems involved in being an expert witness in forensic psychiatry in New Zealand. Secondly. to outline some practical guidelines for psychiatrists who are called upon to give expert evidence, whether clinical testimony, or forensic expert testimony. In attempting to address some of the professional problems arising, three areas appear to require attention. Firstly, we believe it is necessary to re-emphasise Kenny’s [3] notion; that is, it is important that the expert witness testifies “within hisher science” when in the witness box. Secondly, in order to foster understanding among those working at the interface of Jus-
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tice and Health, it would appear useful for the psychiatrist to have a firm grounding in the basics of law. Thirdly, justification for the admission of expert evidence seems to come from legal documentation. Carefully designed research examining clinical issues in forensic psychiatry needs to be conducted in order that we might know the boundaries and limitations of our science.
Acknowledgements The authors would like to thank Gillian Davies for typing this manuscript and the Oakley Hospital Research Foundation for its ongoing assistance.
References Mason KH. Report of the committee of inquiry into procedure5 used in certain psychiatric hocpitals in relation to admission. discharge or release on leave of certain c l a s m of psychiatric patients. Wellington: New Zealand Department of Health. 1988. 2. Bartholomew AA. The criminal law and corrections. Victoria: Wileman, 1986. 3 . Kenny A. The expert in court. In: Baker PV. ed. The Law Quarterly Review. Vol. 99. London: Stevens. 1983. 4. Campbell IG. Mental disorder and criminal law in Australia and New Zealand. Sydney : Butterworth. 1988. 5. Hawkins JM. The Oxford paperback dictionary. Oxford: Oxford University Press, 1979. 6. Kennedy WA. The psychologist as expert witness. I n : Curran WJ. McGarry AL. Shah SA. eds. Forensic psychiatry and psychology: perspectives and standards for interdisciplinary practice. Philadelphia: FA Davis. 1986. 7. International classification of diseases. 9th ed. Geneva: World Health Organisation. 1978. 8. Diagnostic and statistical manual of mental disorders. 3rd ed. Washington: American Psychiatric Association. 1980. 9. Faust D. Ziskin J. The expert witness in psychology and psychiatry. Science 1988; 3:31-35. 10. Curran WJ. Hyg SM. McGarry AL. The psychiatri\t as expert witness. In: Curran WJ. McGarry AL. Shah SA. ed\. Forensic psychiatry and psychology: perspectives and standard5 for interdisciplinary practice. Philadelphia: FA Davis. 1986. I I . Yarmey AD. Popiel PK. Judged value of medical versus psychological expert witnesses. International Journal of Law and Psychiatry 1988; I I : 195-204. 12. Maloney MP. Ward MP. Psychological assessment. New York: Oxford University Pres5. 1976. 13. Diamond BL. The psychiatri5t as expert witness. In: Sadoff RL. ed. The Psychiatric Clinics of North America: Symposium of foren5ic psychiatry. Philadelphia: Saunders. 1983. 14. Stone AD. Law. psychiatry and morality. Washington: American Psychiatric Press. 1984. IS.Wasyliw OE. Cavanaugh JL. Rogers R. Beyond the wentific limits of the expert testimony. Bulletin of the American Academy ofpsychiatry and the Law 1985: 13: 147-158. I.
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16 The Criminal Justice Act. 1985. Department of Justice. New
Zealand Government. 17. The Mental Health Act 1969. Department of Health, New Zealand Government. 18. Faulk M. Basic forensic psychiatry. Oxford: Blackwell Scientific, 1988. 19. Sadoff RL. Forensic psychiatry: a practical guide for lawyers and psychiatrists. Springfield. Illinois: Charles C Thomas, 1988.
20 Roesch R. Webster CD, Eaves D. The fitness interview test: a method for examining fitness to stand trial. Toronto: University of Toronto and Simon Fraser University. 1984. 2 1 , Guidelines for psychiatrists in relation to family court proceedings. News and Notes, Royal Australia and New Zealand College of Psychiatrists. 1990; 23: 25 - 29.
Appendix 1 1. Remember, you are not on trial. 2. Be honest; if you don’t know, say so. 3.Refuse to give opinions in areas outside your expertise. 4. Listen to questions, take time to consider, then answer succinctly or request for the question to be repeatedklarified. 5. Pause before answering in order to give your lawyer the opportunity to object to the enquiry if it is improper [lo]. 6. Give specific examples of behaviour under question. 7. Have all relevant written material with you on the stand, e.g. a copy of your report; a brief summary of scientific literature; and/or reliability, validity and normative data on psychometric tests used. 8. Be familiar with state-of-the-art literature on the area. If there are varying schools of thought on a relevant factor, be prepared to give a brief resume of the differences. For novice witnesses, familiarity with the literature may (a) give one confidence in the stand; and (b) further one’s own learning. 9.Be able to define and explain psychiatric/psychologicalterminology in lay-persons’ language. Confusing terminology and verbosity often diminish the impact of evidence [21]. 10. If the witness feels that the cross-examining lawyer is arguing, attacking unfairly, or using overly emotive tactics, he or she should feel free to point this out to the Judge [19]. 1 1. If the cross-examining lawyer finds logical evidence and sound psychiatric/psychological thinking to challenge the expert’s testimony, it behoves the witness to carefully reconsider hidher original opinion [19]. In this situation, two extremes to avoid are: (a) immediately disavowing one’s previous opinion; or, (b) stubbornly adhering to one’s opinion in the face of overwhelming evidence to the contrary: “flexibility without fragility is the key” [19]. 12.Be prepared for the “hypothetical question” as it is often used as a cross-examination tactic. This involves the reiteration of all the relevant facts that have been introduced as evidence, and/or evidence that will subsequently be introduced [19].The witness should (as for 10 above) simply evaluate hidher opinion in light of the new evidence. 13.Be humble. “Feelings of omnipotence and omniscience should be left in the office, along with narcissism” [19].
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