I. AVOIDING THE CROSS

Before the issues of cross-examining the prosecutor's mental health expert are addressed, consider the possibility of avoiding the necessity of a cross altogether.

Depending upon who the expert is and the facts of your case, you may decide to assist the state's expert by providing information to the expert to insure an accurate, well-informed diagnosis and avoid a finding of competency or sanity. Before making this decision research the expert.

        1. The expert is attempting to testify to the ultimate issue. See, e.g., Kentucky Evidence Law Handbook, 2nd Ed., Robert Lawson, §§6.15 and 6.20. Kentucky caselaw disallows testimony concerning the specific state of mind of a person at a particular time and place. Commonwealth v. Rose, 725 S.W.2d 588 (Ky. 1987); Pendleton v. Commonwealth, 685 S.W.2d 549 (Ky. 1985). The Federal Rules of Evidence, Rule 704 prohibits expert testimony on the ultimate issue of sanity in a criminal case. In addition, there is great controversy in general regarding the use of expert mental health testimony in criminal cases and a body of literature which may be helpful for a motion to preclude. See, e.g., Coping with Psychiatric Testimony by Ziskin.

        2. The expert is attempting to testify regarding a particular matter beyond the scope of his/her expertise. The "expert" may not possess the academic or clinical background to qualify as an expert. The expert may be qualified to testify to some matters but not to others or may be incapable of reaching a reliable conclusion as to a particular matter. For example, testimony regarding future dangerousness of the accused is recognized as highly unreliable by the profession and even by some courts. See, e.g., Redmen v. State, 828 P.2d 395, 400 (Nev. 1992) ("In our view, psychiatric evidence purporting to predict the future dangerousness of a defendant is highly unreliable and, therefore, inadmissible at death penalty sentencing hearings.")

        3. The expert may lack sufficient foundation to testify. KRE 703. It is not uncommon for experts to perform cursory examinations and some courts have refused to credit testimony based on shabby practices. State v. Bennett, 345 So.2d 1129, 1138 (La. 1977) (Evaluation was inadequate and conclusory assertions of competency were entitled to little weight since state clinicians lacked supporting data); State v. Champagne, 497 A.2d 1242, 1246 (N.H. 1985) (Competency finding set aside and the appellate court determined that the state expert's testimony was "undermined by his limited contact with the defendant and his failure to probe beyond the surface of the defendant's mental awareness."). Admission of expert testimony without sufficient foundation presumably would violate the accused's due process rights. See, e.g., Drope v. Missouri, 95 S.Ct. 896, 904 (1973) ("...the failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.")

        4. The expert's testimony may be inadmissible due to a violation of the prosecutor's discovery obligations. RCr 7.24 (including "results or reports of physical or mental examinations" and oral or written incriminating statements). Discovery violations may also violate the accused's rights to due process, a fair trial, confrontation, and effective assistance of counsel.

        5. The expert's evaluation may be inadmissible as the result of a violation of the defendant's Fifth Amendment privilege against self-incrimination and/or the Sixth Amendment right to counsel (and Section 11 of the Ky. Constitution). See, e.g., Estelle v. Smith, 451 U.S. 454 (1981). Kentucky courts have not specifically ruled on whether the state examination is a "critical stage" of the criminal proceeding at which counsel is constitutionally required but at least one other jurisdiction has found this to be so. Houston v. State, 602 P.2d 784 (Alaska 1979) (State constitutional guarantee of effective assistance mandates defense counsel presence at court ordered psychiatric evaluation.) There appears to be an implied statutory right to presence of counsel in Kentucky. KRS 504.080 (5) ("A psychologist or psychiatrist retained by the defendant shall be permitted to participate in any examination under this chapter.").

II. INVESTIGATING THE STATE EXPERT

An effective cross-examination can only be accomplished after investigating the background of the state expert. Remember you practice in a state in which "experts" who have testified in death penalty cases include a fraud, a felon, and a fabricator of credentials. You will not know very important information about the expert unless you investigate.

The following is an outline by Robert Harp, Investigator with the Capital Trial Unit, of the main sources of information for an investigation of a mental health expert.

I. Personal Information
 

A. Obtain as much personal information as possible. This will provide you with other sources of information at a later date.

1. Full name

2. Address

3. Date of Birth

4. Social Security Number

5. School{s} attended

6. Reports, Books or Articles published

A. Status

1. Current or Expired

2. How Obtained

a. Test

b. Agreement from another state

3. Application information (May not provide this information)

B. Complaints

1. Number and type

C. Disciplinary Actions

D. License if noted in other states

III. Personal Background Check

A. NCIC (National Check)

B. Driving Record

1. Indication of Alcohol and Drug related offenses

C. Credit History

D. U. S. District Court, Bankruptcy Division

A. Location of Practice

1. Indication of volume of practice

V. County Courthouse Records

A. Criminal Court Records

1. Local only, Misdemeanors

B. Civil Court Records

1. Civil Suits and Judgements

VI. Professional Associations

A. American Medical Directory

1. American Medical Directory, Doctor by States and Cities

2. Name index of all Doctors (Members)

3. Year of Birth, Medical School, Year Graduation, Year Licensed, Residence and Office Address

B. Professional Publications

1. Papers

2. Published Articles

3. Published Book(s)

a. Name, Date and Subject Matter  

A. Type of insurance

1. Liability

2. Risk

B. Claims made against his insurance

1. Losses

A. Immigration and Naturalization Service

1. Immigration Identification Card

2. Alien Card

3. Aliens must report Address every year

4. Alien Visa File

IX. Military Records

A. Civil

B. Criminal

III. OTHER INVESTIGATION

It may be helpful in planning a motion practice and in preparing for trial or a pretrial hearing to develop a sense of the context in which the expert mental health testimony will be offered and the understanding of the various parties of this testimony.

A. The prosecutor

What experience has the prosecutor had with mental health experts? A more sophisticated prosecutor will present a different challenge then a less experienced one and may have a repertoire of "dirty tricks" which you must anticipate and diffuse. Has the prosecutor authored any pleadings or other documents which would be useful to the defense? For example, an Assistant Attorney General obtained an additional expert in a Kentucky capital case by alleging that KCPC personnel were incompetent to perform the necessary evaluation. Is there a relationship between the prosecutor and the expert which would suggest bias?

B. The police/prosecution witnesses

Do the police or other prosecution witnesses have information which will contradict or undermine the testimony of the state expert? They may have helpful observations of the accused around the time of offense or in past contacts with the accused.

C. The judge

Has the judge had much experience with mental health testimony in criminal cases? Civil cases? As a judge or as an advocate? What is the experience in the local courts with expert mental health testimony in criminal or civil cases?

D. The jury

The nature of your jury may be very significant to the goals and methods of your cross-examination. Have any jurors been involved in the mental health professions? Have they or their family/friends experienced contact with mental health professionals? How much importance will they attach to mental health expert testimony? Investigate these areas in voir dire.

IV. DEFINE THE GOALS OF CROSS-EXAMINATION

Do you need to cross-examine this witness? If yes, then define what you hope to accomplish specifically and with the theory of the case in mind. Depending upon the facts of the case and your jury, these goals may vary widely. Some potential goals are discussed below.

Warning: In setting the goals for cross-examining the state expert keep in mind what the weaknesses/strengths of the defense expert are (if you have one). For example, you do not want to hammer on the little time spent with the accused by the state expert if your expert did not spend much time with the client either.

A. Destroy the expert

This is rather ambitious but the situation may lend itself to a scorched earth approach. If there is little or no good information offered by the state's expert in the report or at trial and there is sufficient basis for an attack on the expert's credentials, the quality of the exam, or improper motive/bias, then this may be the way to go.

B. Elicit positive opinions from the expert

The expert may have reached some conclusions which are helpful to the theory of defense. Bring these points out to the jury and lay the ground-work for an explanation as to why the expert was mistaken as to the harmful conclusions.

C. Elicit positive facts from the expert

The expert may have no positive opinions to offer for the defense but may be used to validate and reinforce facts which are helpful to the client. For example, the expert can verify that the defendant was diagnosed schizophrenic previously or that the defendant exhibited symptoms of severe depression around the time of the

offense. Use the state expert to reinforce the lay and expert witnesses you will call later.

D. Demonstrate that the expert had insufficient basis, insufficient credentials, and/or insufficient experience to formulate a valid opinion

Unless you decided to attempt to coopt the state expert, your expert is going to know a lot more about your client, will have spent more time with him/her, and will be more experienced and better-educated (hopefully) than the state expert. You will be able to lay the foundation in cross for an argument that if the state expert had more experience, training, information, and time and had expended the effort to obtain this, then s/he would have reached the same proper conclusion as the defense expert.

V. AREAS OF CROSS-EXAMINATION

A. The expert -- qualifications and bias

1. Academic credentials

a. Psychologists -- Masters or Ph.D.?

b. Psychiatrists -- Specialization?

c. Board Certifications

d. Grades/Class Rank

e. Other

a. Forensic experience vs. counseling

b. Numbers of patients/setting

c. State/private

d. Previous experience w/ competency and/or insanity evaluation and testimony

e. Other

3. Compensation

a. This case

b. Future cases

a. Hired gun for prosecutors

b. Views on crime and punishment

c. Treatment or punishment orientation

d. Publications/speeches/other writings

e. Work experience

f. Other

a. Victim of crime

b. Family/friends victim

c. Relationship w/ victim

d. Relationship w/ prosecutor

e. Race/cultural/gender/class bias

f. Other

1. Tests (non-medical)

a. Objective vs. subjective

b. How administered

c. Testing atmosphere/effects

d. Examiner effects (various factors related to the examiner can effect the outcome, e.g., whether the examiner has a moustache, race, gender, cultural background, bias)

e. Examinee effects (race, age, gender, occupation, education, economic and marital status, drug or alcohol use -- e.g., caffeine can have a substantial impact, depression, etc.)

f. Inherent bias in tests (race, culture, gender, etc.)

g. Reliability -- the degree to which the testing instrument consistently gives the same results

1. internal consistency
2. test-retest consistency
3. interjudge consistency h. Validity -- the degree to which the testing instrument measures what it purports to measure

1. descriptive validity -- accuracy of the score, diagnosis, or interpretation as a reflection of current behavior
2. predictive validity -- accurate prediction of future behavior

i. Research individual tests used (how test was developed, validity/ reliability studies, revisions of the test, critical publications, etc.)

a. General physical

b. Neurological -- EEG, CAT scan, PET, MRI, etc.

c. Lab work (chemical imbalances often are significant in diagnoses)

d. Expert qualified to interpret test?

e. Failure to perform indicated medical tests

a. Time spent w/ client; number of interviews

b. Setting (jail, office, etc.)

c. Others present

d. Examiner effects (race, gender, cultural background, bias, demeanor, etc.)

e. Examinee effects (race, age, gender, occupation, education, economic and marital status, drug or alcohol use -- e.g., caffeine can have a substantial impact, depression, etc.)

f. Recording procedure (notes, audiotape, videotape, etc.)

g. Other

4. The Social History/Records

a. Client's self-report

b. Interviews w/ family, friends, employer, etc.

c. Interviews w/ prior doctors or counselors

d. Medical records, including birth records, prior psychological/ neurological evaluations, etc.

e. Criminal records, including juvenile and probation

f. School records

g. Military records

h. Other

5. The crime

a. Client's report

b. Interviews w/ police; offense report

c. Interview w/ crime victim

d. Interviews w/ witnesses

a. Staff assistance

b. Medical assistance

c. Consulting assistance

d. The team as a standard of practice (KCPC staffs each patient w/ a psychiatrist, psychologist, social worker, nurses, and a medical physician, and contracts w/ a neuropsychologist and neurologist when that testing is indicated)

e. Discovery of relevant documents and information which are not in the experts "report," e.g., medical evaluations, testing raw data, logs

C. The conclusion

1. The written report

a. Errors of fact

b. Errors in use of technical terms

c. Internal inconsistencies

d. Inconsistencies w/ other documents or testimony

e. Inconsistencies w/ expert's trial testimony

f. Other

a. Ignorance of the history of the profession

b. Ignorance of substantive principles

c. Lack of experience on specific topic

d. Lack of relevant degree, coursework, and/or clinical experience

e. Other

a. Better tests were available and not used

b. Testing was incomplete; further tests required

c. Errors in testing flawed the process

a. Failure to verify information

b. Reliance on hearsay information

c. Assumptions rather than personal observation

d. Factual errors

e. Failure to consider relevant data

f. Additional information could alter conclusion

g. Lack of diligence/effort

h. Other

a. Inconsistent with common sense

b. Inconsistent with prosecutor's lay witnesses

c. Inconsistent with other experts' opinions (the defense expert, previous treating physicians, psychologists, etc.)

d. Other expert could reach a different opinion based on same data

e. Interpretive standards are so subjective, especially when the human mind is involved, that the opinion could be wrong -- not an exact science

f. Opinion is a possible, not probable

g. Controversy within the field of psychology or psychiatry

h. Expert has made inconsistent statements in the case

i. Expert has made prior inconsistent statements outside the case (testimony, publications, etc.)

j. Expert's statements, opinions, process, etc., are inconsistent w/ learned treatises and/or professional standards

k. Expert has a poor grasp of the facts

l. Other

VI. RESOURCES

These are a few helpful sources of information. Your mental health consultant can suggest others. Help is also available through local and national organizations.

J. Ziskin & D. Faust, Coping with Psychiatric and Psychological Testimony, 4th Ed. (Law and Psychology Press, 1988) (3 volumes)

The American Psychiatric Press Textbook of Psychiatry (American Psychiatric Press 1988)

Diagnostic and Statistical Manual of Mental Disorders (DSM III-R)

American Psychiatric Association (1987) (The DSM IV will be out this year.)

H. Kaplan & B. Sadock, Comprehensive Textbook of Psychiatry (5th Ed. 1989)

E. Imwinkelreid, The Methods of Attacking Scientific Evidence, (Michie 1982)

R. Clifford, Qualifying and Attacking Expert Witnesses (James Publishing 1988)

ABA Criminal Justice Mental Health Standards

C. Roberts & S. Golding, "The Social Construction of Criminal Responsibility and Insanity," Law and Human Behavior, Vol. 15, No. 4 (1991)

C. Slobogin, "Estelle v. Smith: The Constitutional Contours of the Forensic Evaluation," Criminal Law Review," 31 Emory Law Journal 71 (1982)

American Psychiatric Association, "Report of the Task Force on the Role of Psychiatry in the Sentencing Process," Issues in Forensic Psychiatry 202 (1984)

American Psychiatric Association, Principles of Medical Ethics (Psychiatry) (1981)

American Psychological Association, Ethical Principles of Psychologists, 36 American Psychologist 633 (1981)

17 ALR 4th 575 --
effective assistance and competency

3 ALR 4th 910 --
right to counsel at psychiatric examination

23 ALR Fed 710 --
adequacy of psychiatric examination

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