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Psychologists as Expert Witnesses: A Plea for Neutrality
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Psychologists as Expert Witnesses: A Plea for Neutrality

 

 

 

Dr. Floyd L. Jennings

Overview

Psychologists are often seduced or convinced to become advocates in judicial proceedings when neutrality is a far wiser course.

When psychologists become involved with the courts as experts (issues of subpoenas and court orders appertaining to releases of information notwithstanding) there are very frequent, near-inherent, ethical conflicts.  In the following, I will review this issue and speak about the role of experts that leads into areas of conflict.   This is a work in progress, and comments, and differences of opinion, are both sought and welcomed.  But first, some background:

Legal Issues Related to Experts

Tex. R. Evid. 702 states:
 
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

There are different types of witnesses:  Fact witness and expert witnesses.  And experts may be testifying or non-testifying.  In addition, experts may be court-ordered or retained.  Each of these options comes with ethical baggage. For example, psychologists – though they may be classified as experts – many times testify as fact witnesses.  This is true in both civil and criminal matters where the psychologist is treating a party to the proceedings and is asked to describe the purposes, course of treatment and diagnosis – though not related to the issue before the court.  Such may occur in a family law case, other civil case, or in a criminal case.  The expert is not, in these circumstances, opining upon an issue before the court, as such.  Psychologists may serve as evaluators or treaters – both under court order, and with differing rules that apply.

I would argue that the primary function of experts, is to assist the trier of fact – either the judge or jury.  That issue is a dominant factor in understanding the role of the psychologist, as we move through the following discussion.

It may be a relief to know a bit about witness immunity.  Traditionally, expert witnesses enjoyed absolute immunity for utterances in a juridical proceeding.  And in general that is the case; however, there are limitations.  That is, experts who offer testimony in court proceedings are immune from liability to a certain degree. For example, in Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994), the witness wrongly diagnosed a child as having been abused by his father – but was held not liable to the, then, supposed perpetrator for having reported the suspected abuse. In James v. Brown, 637 S.W.2d 914 (Tex. 1982) the court held that the doctor’s communications to the court of their diagnosis could not serve as the basis of a defamation action, no matter how negligently the diagnoses were made!  But the court opened the door to damages on others grounds.  Consider Deatherage v. Examining Board of Psychology, 948 P2d 828 (Wash. 1997) where the Washington Supreme Court held on the single issue of witness immunity that such immunity cannot be raised as a defense to a state licensing board’s initiation of a professional disciplinary proceeding.  In short, you may not be liable in a civil suit but to the Board liable for misconduct.

In addition, there issues about confidentiality and privilege that apply when psychologists testify, but those issues are beyond the scope of these comments save to note that there is essentially no privilege in criminal proceedings save that appertaining to substance abuse information.  The provisions of Texas Health and Safety Code Chapter 611 can be read by all, but the limitations on releasing information apply only in civil proceedings.

 

Differing Roles of Psychologists and Lawyers

Lawyers are unabashedly advocates for their clients; psychologists are not advocates in judicial proceedings 1.  In addition to the Texas Disciplinary Rules of Professional Conduct for attorneys which require “zealous representation”2,  Lord Brougham said over a century ago:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.3 

For, psychologists, on the other hand, subjects of forensic evaluation are not patients or clients;4 for whom a host of duties would arise.  And the tone or thrust of the Specialty Guidelines for Forensic Psychology 5 are quite different that the Disciplinary Rules for attorneys.  For example, consider the language of Rules 101 and 102 – emphasizing “accuracy, honesty and truthfulness in the science, teaching and practice of forensic psychology”; or the necessity for impartiality, striving to be unbiased, and avoiding “partisan presentation.”  Examiners are encouraged to “focus upon legally relevant factors;”6  as well as present alternative interpretations of data.  Board rules specifically prohibit advocacy (in the legal sense as appertaining to a role in a legal proceeding).

Lawyers, however, see psychologists – and other experts – as merely tools in the creation of a narrative that will exculpate their defendant (in criminal proceedings) or lend credibility to the position espoused by either the plaintiff or defendant in civil matters.  That psychologists would be interested in “the truth” is often said to be naïve; for “that’s not the way the system works.”  Consequently, in criminal proceedings, defense counsel may eschew a county agency that provides competency and sanity evaluations as inherently biased; e.g. “The just work for the state.”  Responses I have heard include, “We want our own examiners” – both so that information would not have to be shared, as would be the case in an independent court-ordered examination, but because a retained expert is thought to be more malleable and likely to produce a report that would aid the party retaining him or her.

As a result, both parties in legal proceedings often obtain retained experts – some testifying and others who review materials that would assist in impeaching the opposing expert.

 

A Plea for Neutrality

I would argue that the profession will be far better served in the long term if psychologists refuse to become tools of either party in a legal proceeding.  Neutrality is not an absolutist goal, but a reasonable goal.  Psychologists should have nothing at stake in the outcome of a legal matter – but if a witness, then we may have much at stake in terms of the necessity to present information clearly, fairly and without either rancor or hauteur.  This does not mean that one is unbiased, but that the essence of being a professional is not lack of bias, but that one knows their own biases and can either suspend them in a specific context, or hold a bias which favors neither side.  For example, and from a slightly different perspective, psychologists may choose to be biased not in favor of either party, but in terms of the court and the necessity to serve the court well in presenting information – in truly serving the interests of justice by assisting the trier of fact.  

But, sometimes, experts become enamored off their own role and contribution and while legal opinions are rarely humorous (or pithy) there is a wonderful comment in Graham v.  State, 556 S.W.2d 941 (Tex. Crim. App. 1978) where the court pointed out that legal decisions are not strictly medical, and were they so “they would be tried in hospitals and not courts.7  Psychologists are not interested, or should not be interested, in “creating a narrative”, as would be defense counsel, or in bolstering a specific outcome. 

To be sure, the siren call of fiscal rewards is sometimes such that psychologists go to great length to uphold or strengthen the case of the party who has sought their assistance.  To so do is to contribute to the oft held beliefs that opinions are purchasable, that experts are played by counsel like musical instruments producing a specific tune or cadence upon command, and indeed there are thousands of experts who literally make their living solely based upon providing testimony in legal proceedings. Or as was said by  authors in a law review journal 8

Experts who come across as measured and impartial are unlikely to be chosen by either side. Thus, “[a] fool with a small flair for acting and 9 mathematics might be a more successful witness than say, Einstein…..There is a general consensus that the “expert witness industry has grown exponentially and with it the misuse of experts as mere partisan. Mouthpieces.”



Tips on Maintaining Neutrality

First, I would encourage the expert to be court appointed – preferably paid by the court rather than either party.  But, if the order is ex parte, then in the agreement with counsel it is important to iterate that “regardless of the fact that I am retained by you, my primary loyalty is to the court and to assist the trier of fact.  Unlike you, I am not an advocate for your client, but an advocate for the truth as best I see it.”

And, if court appointed as an examiner, then the rules must be clear as to who is the recipient of any information gained in the course of the evaluation.  In cases involving competency to stand trial, for example, there is a statute which states that nothing gained in the course of the evaluation may be used in any subsequent criminal proceeding – unless the defendant has opened the door. 

In the case where the psychologist is providing treatment, it is helpful – in advance – to have the rules specified as to the recipient of any information or record, and stated clearly that the psychologist is not providing any assistance on the ultimate issue before the court, such as determination of parental rights, as a psychologist may be a treater or evaluator but not both in the same case.   Similarly, the recipient of any report generated by the psychologist should be identified in advance, as well as the ownership of the records.  

Finally, in the case where the psychologist is reviewing records and reports in a civil matter and not expected to testify, common courtesy – maybe, uncommon courtesy should apply such that the psychologists formal - and informal – comments should be respectful, attentive to detail, and empirically based.
 

 


 

1 See references to eschewing advocacy in 22 TAC §465.18

2  Tex. Disciplinary Rules Prof’l Conduct, Preamble 

3 The Trial of Queen of England in the House of Lords 1820 3 (1821)

4  22 TAC §465.1(8)

5 Specialty guidelines for forensic psychology. (2013). American Psychologist, 68(1), 7-19. doi:10.1037/a0029889 Retrieved from https://www.apa.org/practice/guide
lines/forensic-psychology.aspx

6 Rule 10.01

7 The full quote reads: The issue is not strictly medical, and expert witnesses, although capable of giving testimony that may aid the jury in its determination of the ultimate
issue, are not capable of dictating determination of that issue. Only the jury can join the non-medical components that must also be considered in deciding the ultimate issue. That ultimate issue of criminal responsibility is beyond the province of expert witnesses. Were it otherwise, the issue would be tried in hospitals rather than the courts.  Graham at 949.

8 Sonenshein, David; Fitzpatrick, Charles. The Problem of Partisan Experts and the Potential for Reform Through Concurrent Evidence, 32 Rev. Litig. 1, UT
School of Law, Austin, Tx.

9 22 TAC §465.18

 
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