Chapter 23 - But Doctor, isn't that just your opinion?

Chapter 23: "But Doctor, Isn't That Just Your Opinion?"
Contributing to the Decision-Making Process of the
Forensic Psychologist as Expert Witness©

BY ERIC Y. DROGIN, J.D., PH.D. AND
CURTIS BARRETT, Ph.D., ABPP

Taking Charge.-.and Giving Charges

Do we admit the existence of opinion?
Undoubtedly.
Then I suppose that opinion appears to you to be darker than knowledge, but lighter than ignorance?
Both; and in no small degree.
- Plato
The Republic, c.370 B.C.

In our last article for The Advocate¹, we asserted that:

The difference between the administration of a prescribed series of tests, and the ability to knit results from all sources of data into a responsive, compelling, persuasive, and ultimately convincing whole before the trier of fact, is the difference between the clinical psychologist who per-forms an examination and the forensic psychologist who conducts an evaluation.²

The evaluation, however, is only the first of two steps in fulfilling the role of the forensic psychologist as expert mental health witness. The witness must first perform an evaluation, without bias, resulting in an opinion, and then must be prepared to advocate that opinion effectively within the overall context of the attorney's case presentation. As noted expert Dr. David Shapiro points out, "one should not consider oneself an advocate for the patient, for the defense, or for the government. One is an advocate only for one's own opinion."³

The process that leads to the construction of an expert opinion, and its advocacy in various con-texts, can be viewed in the context of a series of "charges." Obviously, the defendant has been presented with "charges," or there would be no defendant. Ultimately, the attorney will be presented an itemized list of "charges" at the conclusion of the case, or quite likely there would be no expert.

What are often ignored are the "charges" with which the expert must be presented by the attorney at the inception of the expert's involvement in the proceedings. All too frequently, experts are merely asked to "perform an evaluation" of a defendant, with little if any additional guidance. Attorneys may focus exclusively on the contents of the forensic psychological report as a test of the adequacy of the expert's performance prior to testimony, without stopping to consider the need to influence the full scope of the expert's role in the construction and presentation of the attorney's overall theory of the case.

From Evaluation to Opinion to Advocacy

The flow of the expert's transition from forensic evaluation to effective advocacy of an expert opinion can be depicted in the following fashion:

The confluence of data from various sources such as examination, review, interview, research, and consultation (category subheadings provide merely a few examples) informs the scientific basis for an expert opinion. Advised of that opinion, the attorney must then determine if the opinion is sufficiently favorable and/or informative to continue to the advocacy phase, with the expression of that opinion via report, testimony, and/or deposition. Regardless of whether expression of the opinion will be persuasive to the trier of fact, the attorney may benefit from additional consultation by the expert regarding such issues as direct and cross-examination, wit-ness interviewing, et cetera.

The scope of the evaluation, and the quality and persuasiveness of the opinion it serves to generate, depend upon the ability of the attorney to provide the expert with the appropriate data in as timely a fashion as possible.

Attorneys often want to know what are the "required" components of the data sources that contribute to the expert opinion. The answer to that question really depends upon the interaction of a variety of factors which may include, among others, the reliability and validity of the data which have been obtained, the nature of the forensic issue(s) to be addressed, the current status of the defendant, and the skill, training, and experience of the evaluator.

For example, a recently and severely brain dam-aged defendant, incapable of coherent speech or any understanding of verbal or written communication on the part of his attorney or anyone else, may be found incompetent to stand trial on the basis of thorough forensic clinical examinations, with a lesser degree of emphasis upon the contributory opinions of friends, family, and former teachers. Similarly, an opinion on the adequacy of an evaluation performed by another professional in the past may not require the testifying expert to perform an examination of that defendant some years later, as long as the conclusions provided are appropriately limited.

The adequacy and utility of the professional opinion is often most helpfully measured, not in binary terms of "adequate" versus "inadequate," or "competent" versus "incompetent," but rather in incremental terms regarding its potential for persuasiveness, and the degree to which it will withstand the rigors of cross- examination.

Sources of Guidance

While there is no solitary, bottom-line reference which definitively and comprehensively states the necessary components of a competent forensic psychological evaluation and/or report, there are numerous sources of guidance upon which attorneys and forensic psychologists can draw.

Ethics Codes and Guidelines are aspirational state-ments which seek to guide the behavior of pro-fessionals belonging to the associations which promulgate them. Failure to adhere to an ethical code or guideline may lead to expulsion from professional societies, and even to criminal sanctions when compliance is mandated by the psychologist's state licensing statute.

The Ethical Principles of Psychologists and Code of Conduct⁴ of the American Psychological Association (APA) contains many guidelines related to principles of psychological assessment, and in its most recent incarnation has included standards which pertain specifically to "Forensic Activities":

7.01 Professionalism

Psychologists who perform forensic functions, such as assessments, interviews, consultations, reports, or expert testimony, must comply with all other provisions of this Ethics Code to the extent that they apply to such activities. In addition, psychologists base their forensic work on appropriate knowledge and competence in the areas underlying such work, including specialized knowledge concerning special populations. 7.02 Forensic Assessments [a] Psychologists' forensic assessments, recommendations, and reports are based on information and techniques (including personal interviews of the individual, when appropriate) sufficient to provide appropriate substantiation for their findings.

[b] Except as noted in [c] below, psychologists provide written or oral forensic reports or testimony of the psychological characteristics of an individual only after they have conducted an examination of the individual adequate to support their statements or conclusions.

[c] When, despite reasonable efforts, such an examination is not feasible, psychologists clarify the impact of their limited information on the reliability and validity of their reports and testimony, and they appropriately limit the nature and extent of their conclusions or recommendations.

7.03 Clarification of Role In most circumstances, psychologists avoid performing multiple and potentially conflicting roles in forensic matters. When psychologists may be called on to serve in more than one role in a legal proceeding - for example, as consultant or expert for one party or for the court and as a fact witness - they clarify role expectations and the extent of confidentiality in advance to the extent feasible, and thereafter as changes occur, in order to avoid com-promising their professional judgment and objectivity and in order to avoid misleading others regarding their role. 7.04 Truthfulness and Candor [a] In forensic testimony and reports, psychologists testify truthfully, honestly, and candidly and, consistent with applicable legal procedures, describe fairly the bases for their testimony and conclusions.

[b] Whenever necessary to avoid misleading, psychologists acknowledge the limits of their data or conclusions.

7.05 Prior Relationships A prior professional relationship with a party does not preclude psychologists from testifying as fact witnesses or from testifying to their services to the extent permitted by applicable law. Psychologists appropriately take into account ways in which the prior relationship might affect their professional objectivity or opinions and disclose the potential conflict to the relevant parties. 7.06 Compliance with Law and Rules In performing forensic roles, psychologists are reasonably familiar with the rules governing their roles. Psychologists are aware of the occasionally competing demands placed on them by these principles and the requirements of the court system, and attempt to resolve these conflicts by making known their commitment to this Ethics Code and taking steps to resolve the conflict in a responsible manner. While not adopted by the APA as a whole, the Specialty Guidelines for Forensic Psychologists⁵ provide additional guidance regarding evaluation and report procedures, including the following:

VI. Methods and Procedures

[B] Forensic psychologists have an obligation to document and be prepared to make available, subject to court order or the rules of evidence, all data that form the basis for their evidence or services. The standard to be applied to such documentation or recording anticipates that the detail and quality of such documentation will be subject to reasonable judicial scrutiny; this standard is higher than the normative standard for general clinical practice...

[F3] When a forensic psychologist relies upon data or information gathered by others, the origins of those data are clarified in any professional product. In addition, the forensic psychologist bears a special responsibility to ensure that such data, if relied upon, were gathered in a manner standard for the profession...

VII. Public and Professional Communications [E] Forensic psychologists, by virtue of their competence and rules of discovery, actively disclose all sources of information obtained in the course of their professional services; they actively disclose which information from which source was used in formulating a particular written product or oral testimony. Learned Treatises, including texts and journal articles, are a fertile source of guidance for various authors' opinions on necessary elements of various forms of forensic psychological evaluation and/or report. For example, in his influential The Psychologist as Expert Witness⁶, Dr. Theodore Blau outlined components which he felt must be covered in the psychologist's assessment of criminal responsibility (reproduced here in condensed fashion):

1. Events and Observations Concerning the Crime.

2. The Defendant's Recall.

3. Ancillary Sources.

4. Psychological Evaluation.

a) A History from the Defendant.
b) A History from the Family of the Defendant.
c) Intellectual Evaluation.
d) Neuropsychological Factors.
e) Competency Evaluation.
f) Reading Skills.
g) Personality.
h) Measures of Faking or Malingering.

5. The Report of Findings and Opinion.

a) Retention Process.
b) Facts of the Case and Sources.
c) Defendants's Recollection of Events.
d) Observations of Defendant's Behavior.
e) Family History and Events of Significance.
f) Tests and Procedures Used.
g) Clinical Observations.
h) Test Results.
i) Summary of Current Psychological State.
j) General Concordance of Facts and Results.
k) Statement of Opinion.⁷

The ABA Criminal Justice and Mental Health Standards⁸ were the product of several multi-disiciplinary teams, including psychiatrists, psychologists, attorneys, and others, who worked pursuant to a MacArthur Foundation grant to in-form the legal process about dealing with the defendants suffering from mental illness or mental retardation. The following is one representative standard, regarding assessment of competency to stand trial:

Standard 7-4.5 Report of the Evaluator

[a] The first matter to be addressed in the report should be the assessment of the defendant's competence to stand trial. If it is determined that the defendant is competent to stand trial, issues relating to treatment or habilitation should not be ad-dressed. If it is determined that the defendant is incompetent to stand trial, or that the defendant is competent to stand trial but that continued competence is dependent upon maintenance of treatment or habilitation, the evaluator should then report on the treatment or habilitation necessary for the defendant to attain or maintain competence.

[b] If it is determined that treatment or habilitation is necessary for the defendant to attain or maintain competence, the re-port should address the following issues:

1) the condition causing the incompetence;

2) the treatment or habilitation required for the defendant to attain or maintain competence and an explanation of ap-propriate treatment alternatives in order of choice;

3) the availability of the various types of acceptable treatment or habilitation in the local geographical area. The evaluator should indicate the agencies or settings in which such treatment or habilitation might be obtained. Whenever the treatment or habilitation would be available in an outpatient setting, the evaluating expert should make such fact clear in the report;

4) the likelihood of the defendant's attaining competence under the treatment or habilitation and the probable duration of the treatment or habilitation.

[c] If the evaluating expert determines that the only appropriate treatment or habilitation would require that the defendant be taken into custody or involuntarily committed, then the report should include the following:
1) an analysis of whether the defendant, because of the condition causing mental incompetence, meets the criteria for in-voluntary civil commitment or placement set forth by law;

2) whether there is a substantial probability that the defendant will attain competence to stand trial within the reasonably foreseeable future;

3) the nature and probable duration of the treatment or habilitation required for the defendant to attain competence;

4) alternatives other than involuntary confinement which were considered by the evaluator and the reasons for the rejection of such alternatives.⁹

These Standards also address, in more general fashion, requirements for the overall content of forensic psychological reports: Standard 7-3.7
Preparation and contents of written reports of mental evaluations

[b] Contents of the written report.

1) The written evaluation should ordinarily:

A) identify the specific matters referred for evaluation;

B) describe the procedures, tests, and techniques used by the evaluator;

C) state the evaluator's clinical findings and opinions on each matter referred for evaluation and indicate specifically those questions, if any, that could not be answered;

D) identify the sources of information and present the factual basis for the evaluator's clinical findings and opinions; and

E) present the reasoning by which the evaluator utilized the information to reach the clinical findings and opinions. The evaluator should express an opinion on a specific legal criterion or standard only if the opinion is within the scope of the evaluator's specialized knowledge.¹⁰

Statutory Guidelines may be limited in scope, but mandate key requirements that are often ignored by attorneys and not disclosed to expert wit-nesses. For example, in Kentucky, KRS 504.100 ("Appointment by court of psychologist or psychiatrist during proceedings") provides that: (2) The report of the psychologist or psy-chiatrist shall state whether or not he finds the defendant incompetent to stand trial. If he finds the defendant is incompetent, the report shall state:
a) Whether there is a substantial probability of his attaining competency in the foreseeable future; and

b) What type treatment and what type treatment facility the examiner recommends.

We frequently review reports which provide a bottom-line opinion regarding competency, but fail to adhere to these additional requirements.

Sometimes, the issue is not what comprises the evaluation or report, but who is to perform or write them. According to KRS 504.016 ("Definitions for Chapter"), pertaining to competency to stand trial and criminal responsibility evaluations:

(9) "Psychologist" means a person licensed at the doctoral level pursuant to KRS Chapter 319 who has been designated by the Kentucky Board of Examiners of Psychology as competent to perform examinations. Both KRS 504.100 and KRS 504.070 ("Evidence by defendant of mental illness or insanity; examination by psychologist or psychiatrist by court appointment; rebuttal by prosecution") refer to the appointment of a "psychologist" to "examine, treat, and report on the defendant's mental condition." One frequently encounters criminal responsibility and competency to stand trial evaluations where reports are signed by a psychologist at the doctoral level and a psychological associate or certified psychologist at the master's level, and where it transpires that a substantial portion of the evaluation has been performed by the latter professional.

Conclusions

There are many different routes to a professional opinion. The route taken will determine the credibility, persuasiveness, and generalizability of that opinion, in conjunction with the reputation and skill of the expert witness providing it. A wealth of resources including ethical codes and guidelines, learned treatises, and statutes contributes to the constantly shifting parameters of what are acceptable and/or necessary components of the forensic psychological evaluation and report. Attorneys will greatly enhance the quality of the professional opinions of their experts, to the extent that they provide those experts with the fullest possible range of data, and continue to discuss in a collegial fashion the evolving nature of forensic mental health sciences.

Footnotes

¹E. Drogin & C. Barrett, Forensic Mental Health Assessment: Moving from Examination to Evaluation, 18 The Advocate 129-133, (1996).
²Id. at 132.
³D. Shapiro, Psychological Evaluation and Expert Testimony, 77 (1984).
⁴American Psychological Association, Ethical Principles of Psychology and Code of Conduct, 47 Am. Psychologist 1597-1611 (1992).
⁵Committee on Ethical Guidelines for Forensic Psychologists, Specialty Guidelines for Forensic Psychologists, 15 Law & Human Behavior 655-65 (1991).
⁶T. Blau, The Psychologist as Expert Witness (1984).
⁷Id. at 91-93.
⁸American Bar Association Criminal Justice Standards Committee, ABA Criminal Justice Mental Health Standards (1989).
⁹Id. at 193-94.
¹⁰Id. at 109.

Box 22576
Louisville, Kentucky 40252
Tel: (877) 877-6692
Fax: (877) 877-6685
e-mail: eyd@drogin.net

CURTIS BARRETT, Ph.D., ABPP

Norton Psychiatric Clinic
200 E. Chestnut St.
Louisville, Kentucky 40232-5070
Tel: (502) 629-8885
Fax: (502) 629-7788

ERIC DROGIN is a clinical and forensic psychologist and attorney currently specializing in trial con-sultation, who has testified in over 150 civil and criminal jury trials. A member of the clinical faculty of the University of Louisville School of Medicine, Dr. Drogin serves as a staff psychologist for the Norton Psychiatric Clinic in Louisville. He has published a number of articles regarding various clinical and legal issues in forensic mental health and professionalism. A member of various national, state, regional, and local legal and psychological associations, Dr. Drogin currently serves as Chair of the Federal Bar Association's Public Health Committee.

CURTIS BARRETT is a clinical and board-certified forensic psychologist with over 25 years of experience in forensic assessment. Dr. Barrett is a Professor in the University of Louisville School of Medicine's Department of Psychiatry and Behavioral Sciences, and is currently Chief Psychologist for the Norton Psychiatric Clinic in Louisville. He has served in the past in such roles as Director of Continuing Educa-tion for the American Academy of Forensic Psycho-logy, President of the Psychology of Psychologists in Addictive Behaviors (now Division 50 of the American Psychological Association), President of the Ken-tucky Psychological Association, and Chair of the Kentucky Board of Examiners of Psychology. Dr. Barrett is the author of numerous articles on clinical and forensic psychology.

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