By
Edward Stern J.D.
At times, a psychologist will be called upon to be an “expert” witness in a case that may proceed to a court trial. Today in the United States, although the figures vary greatly from jurisdiction to jurisdiction, about 10 percent of cases started in a court actually proceed to a completed trial.
In any given court case, the psychologist could take on many roles. In addition to participation as an expert, a psychologist could be the therapist for a patient and be asked or required to testify in that capacity. As a therapist, the issues of patient privilege and waiver of patient privilege will be important. A psychologist may be asked to serve as a consultant to an attorney or to a testifying psychologist. Consultants have been used to help select jurors or to help prepare witnesses as to dress, demeanor or phraseology for trial or to review the presentation of psychological theories, practices and legal defenses.
Psychologists can also be appointed by a court to make either a diagnosis or a recommendation at the judge’s request. This column will focus on the role of psychologist as expert witness.
An expert should have special knowledge. For psychologists, this is usually evidenced by academic credentials, training, employment history, publications and licensure. In other fields, there are other ways to become an expert, e.g. life experience. The expectation is that an expert opinion will carry more weight, particularly with a jury. Often, however, both sides will employ an expert, so a jury may be left trying to decide which expert is more credible. Or they may discount both experts because they may not have a basis to believe one expert over another.
An attorney should not trust the expert to prepare alone. The attorney and expert should find time to work together to prepare for trial. They shouldn’t surmise that when the expert testifies, everything will be believed.
An expert is a teacher in that he/she does have specialized knowledge that a jury needs to accept and understand. This means that the testimony and expertise needs to be explained in terms that are clear and comprehensible to the jurors. The expert could consider using visual aids to instruct the jury in order to give the jury an imprinted message to remember. Things that are put into writing tend to be considered more important than words alone.
The expert also needs to be prepared for cross-examination. While on the witness stand, the attorney who hired the expert asks questions that are called the direct examination. Direct examination is usually limited to who, what, where, when, describe or explain. Do not be concerned with limitations or the types of questions if the attorney and psychologist have practiced enough before hand and understand their goals. The attorney and the expert should know before trial what testimony is expected at trial.
The questions asked by the attorney for an opposing party to the same witness are called cross-examination. These questions can be far ranging including going into a person’s credentials, prior testimony in the case (depositions), testimony in other cases, different theories, alternatives and other areas. Cross examination can include leading questions and can make assumptions. The expert will probably be asked about meeting with the attorney or attorneys before the trial and there will probably be questions regarding how much the expert is being paid. These questions are an attempt to put the ideas into the jury’s mind that the expert is biased or self-interested in the outcome. The directing attorney and the expert should discuss these issues before trial so the jury sees an honest and acceptable response to all questions.
Experts are important. They do not get to decide the ultimate issues of fact in a case; that’s the jury’s job. However, an expert can discuss a case with elements of this case and give an expert opinion within a degree of certainty within his/her field of expertise. Psychologists could have such expertise in many areas, including but not limited to: the ability of a defendant to work with an attorney to aid in the defendant’s own defense, issues of insanity, intellectual abilities and deficiencies, memory function, degrees of depression, diagnoses, mental capacity, incompetence and others. These issues can arise in criminal cases, civil cases, custody disputes, juvenile proceedings, commitment hearings and other types of cases.
“So…what exactly is a forensic psychologist?”
This is one of the most common questions we receive at Lepage Associates when clients or attorneys are looking for the best kind of support for their legal cases. Though the title “forensic psychologist” often conjures up misleading images from crime shows, psychologists can genuinely play a pivotal role in multiple parts of the legal process.
As expert witnesses, psychologists can provide both factual testimony and clinical opinions in family, civil, and criminal courts. Psychologists typically provide their educational background, curriculum vitae (CV), and other relevant information about their clinical and forensic experience. If asked to testify, a psychologist must be qualified as an expert in court with the judge’s approval. The psychologist may testify as a general expert on a topic, as an expert specific to the parties and case if he or she has treated or evaluated a party. Therapists also sometimes testify as a fact witness versus an expert witness.
An attorney can retain a psychologist to speak about their research – or the general state of the science – on a particular topic. In these instances the psychologist is acting as a general expert (on the topic), versus an expert who has meet with any of the parties and evaluated them specifically. For example, an expert on childhood trauma could provide information on trauma symptoms to a judge or jury. A psychologist can also speak on a topic of concern (e.g., parental alienation) by defining it, describing it for the court, and describing how it manifests or is relevant to the legal case.
As an expert witness and evaluator, a forensic psychologist can be retained for specific legal matters and fairly and objectively answer such questions. Psychologists can provide both written evaluations and oral expert testimony. Many forensic evaluations include common elements – clinical interviews, collateral interviews (e.g., treatment providers, family, friends), psychological testing, a review of records, and conclusions. Records can be wide in scope and include legal documents, mental health records, depositions, emails/texts between parties, and copies of social media posts. The content and test selection, however, differ significantly based on the court and referral question. Evaluators testify as expert witnesses since they form a clinical opinion on the case.
Another avenue where psychologists can give helpful information is as a treating psychologist, i.e., therapist. If a plaintiff, defendant, or other court-involved party has a psychologist as an individual therapist, that therapist can comment on the course of treatment with their client as a fact witness. As a fact witness, however, a treating psychologist could not answer questions such as, “Do you believe he or she was insane at the time of the offense?” For a therapist to be asked about their clinical opinion, they should be sworn in as an expert.
Family Court
Psychologists can assist attorneys and judges in divorce, custody, and guardianship or legal capacity cases. Psychologists can conduct full scale custody evaluations to help determine the ideal custody arrangement for parents and children, parental capacity evaluations that assess an adult’s ability to safely parent their children, or general psychological evaluations for children and adults to provide clinical information and treatment recommendations to the court. Testing can include but is not limited to personality tests and assessments of parental stress, substance use, or anger. By conducting thorough evaluations, forensic psychologists can weigh in with their clinical opinions and diagnostic impressions. Family courts can also determine a person’s competency to make medical, financial, or legal decisions, and intelligence, memory, and cognitive testing can give insight into specific capacities for certain types of decision-making.
Civil Court
Civil court sees a wide breadth of cases. One common area for psychologists to give expert opinions is regarding emotional distress and mental health problems incurred by a plaintiff. Personality tests and trauma inventories can help elucidate the extent of such distress. Immigration evaluations by psychologists are also commonly requested in civil court.
Criminal Court
In criminal court, psychologists are often court-appointed to conduct competency evaluations to help determine if a defendant can “understand and assist” in the trial process. Tests of personality and psychological functioning, specific competency assessments, and tests of malingering with validity scales are common for competency evaluations. Psychologists can also perform general psychological evaluations and risk assessments to gauge an individual’s risk of future violence or sexual offense. The results of these evaluations allow psychologists to give specific recommendations for treatment and risk reduction to benefit both community safety and the defendant. Contrary to media portrayals, the “insanity defense” is only raised in one percent of cases. However, forensic psychologists are qualified to evaluate someone’s mental state at the time of the offense.
In Summary…
This article explained a few of the ways psychologists can be integral participants in legal cases, and how they can. Testify, which is most often as an expert witness versus as a fact witness. The examples included are not exhaustive. The scope of psychologists’ involvement in the legal system continues to grow. Legal professionals have increasingly turned to psychologists to give insight into important and sometimes ambiguous questions about individuals, families, and capacity for change. Forensic psychologists possess the training and expertise to help courts make informed decisions that affect millions of people. If you are a legal professional or a client who is court-involved, consider consulting with a forensic psychologist to assist in objective and fair representation.
