Roles and Responsibilities of Forensic Psychologists

The Temptations of Forensic Psychologists

1. Promising too much
   
   • Current Advertising Practices
   • Psychological Testing Practices
     
     • appropriateness of instrument for intended use
     • standardization/administration practices
     • reliability
     • validity
     • (objectivity of) interpretation of results
2. Substituting Advocacy for Scientific Objectivity
   
   • Hired Guns (e.g., Margaret Hagen's (1997) "Whores of the Court")
   • Temptation to go beyond what the data warrant
3. Letting Values Overcome Empirically Derived Findings
   
   • Conscious vs. unconscious actions
   • Should forensic psychologists allow their strongly held views to influence their testimony? (e.g., parents who smoke; child-rearing practices)
   • "Force-fitting" data (e.g., the Wee Care Day Nursery sexual abuse case in which the expert concluded that "the testimony and conduct of 19 out of 20 children were consistent with the presence of a child sexual abuse accommodation syndrome")
4. Doing a Cursory Job
   
   • Ford v. Wainright, 1986
     In a competency hearing, three psychiatrists concluded that Alvin Ford, a prisoner on death row in Florida was competent to stand trial-despite increasingly bizarre behavior-based on a 30-minute interview in the presence of eight other people
5. Maintaining Dual Relationships and Competing Roles
   • The importance of maintaining a neutral stance

Specific Roles of Forensic Psychologists

1. Trial Consultant
• Duties:
  • Identify major issues in a case
  • Prepare witnesses for trial
  • Advise in jury selection
• Clients
• Conflicts with the Legal System:
  • Procedural - tendency to take on the role of an attorney
  • Substantive - psychologists need to remember that attorneys and judges are frequently skeptical of advice generated from laboratory studies of human cognition and behavior
• Ethical Responsibilities:
  • Faking Data
  • Plagiarism
  • Drawing false conclusions to fit client's expectations
  • Confidentiality (how far should a forensic psychologist go to protect confidentiality)
2. The Expert Witness (as opposed to fact witnesses, also termed ordinary witnesses, lay witnesses, and percipient witnesses)
   • Duties -- to express opinions based on specialized knowledge in some field. In most jurisdictions, an expert's opinion must be stated, within the standards of the relevant field, "to a reasonable degree of certainty."
   • Fact witnesses are limited to testifying on those things they have directly observed or experienced
   • Expert Witnesses may:
   1. base his/her testimony on information that was gathered solely for the purpose of testifying in the litigation
   2. offer an opinion on the cause or consequences of occurrences, interpret the actions of other persons, draw conclusions on the basis of circumstances, comment on the likelihood of events, and may even state her beliefs regarding such seemingly nonfactual issues as fault, damage, negligence, and avoidability
   • Principal Ways in which Experts Become Involved in Litigation:
     • When they are retained by one of the parties for the purpose of analyzing information and providing an opinion
     • When appointed by the court for the purpose of sorting through conflicting claims or conclusions
     • Or, an expert (e.g., a treating physician) may be an actual witness to the events at hand
   • Clients:Typically recruited by attorneys, but qualified by a judge
   • Conflicts with the Legal System
     • Experts control of knowledge vs. attorney/judge's control of the case
     • Ability of the attorneys/judge to limit the scope of an expert's testimony
     • Facts of the case are given to experts by the attorneys who hire them
     • The concern over "junk" science
     • The difficulty in prosecuting an expert witness for his/her testimony is a setting event for a host of potential problems (e.g., a willingness to overlook contrary findings, potential errors and incompetence, a lack of preparation, personal biases, and assuming the role of an advocate)

Standards of Admissibility

The Frye Test

During the 1920s, a significant interest in truth-and-lie-detection devices eventually led to the lie detector's entering the courtroom in Frye v. United States in 1923. This case served as a starting point for the courts to shape their standards of admissibility for expert testimony (Hess, 1999).

Under the Frye rule, scientific testimony is admissible only if the witness's tests and procedures have gained "general acceptance" within the relevant scientific or technical community. Under this approach, innovative procedures may not form the basis of expert testimony until they have been adopted, or at least recognized, by a broader scientific community, often interpreted as requiring publication in a peer-reviewed journal. It is not sufficient for the expert herself, no matter how impressive or persuasive to the court, to vouch for the validity of her own methods.

After the establishment of the "Frye test," things were relatively settled until Brown v. Board of Education (1954) in which psychologists-Kenneth and Mamie Clark-used children's choice of black or white dolls as playmates to illustrate the devaluation of black children-presumably as a function of segregated school systems.

The direct interpretation: if the tests demonstrate damage to black children, then they demonstrate that the damage is less with segregation and greater with desegregation.

The Clark's interpretation was "that black children of the South were more adjusted to the feeling that they were not as good as whites, and because they felt defeated at an early age, did not bother using the device of denial."

Jenkins v. United States (1962)

In this case, a psychologist was called upon to serve as an expert witness in what was termed "psychiatric" matters. The court held that "the determination of a psychologist's competence to render an expert opinion based on his findings as to presence or absence of mental disease or defect must depend upon the nature and extent of his knowledge-not merely on his claim to the title "psychologist." And that determination, after hearing, must be left in each case to traditional discretion of trial court subject to appellate review (Blau, 1984, p. 346).

The Jenkins court defined the expert witness as "qualified to testify because he has firsthand knowledge that the jury does not have of the situation or transaction at issue. The expert has something different to contribute. This is the power to draw inferences from the facts that a jury would not be competent to draw.

According to Jenkins, the use of expert testimony requires the following two elements:

1. the subject of the inference must be distinctively beyond the grasp of the average layman
2. the witness must have specialized skills that will aid the trier of fact in his search for truth. The knowledge may in some fields be derived from reading alone, in some from practice alone, or as is more commonly the case, from both (Beis, 1984, p. 234)

Federal Rules of Evidence (FRE)

"The Supreme Court codified and Congress legislated the Federal Rules of Evidence in 1975. The FRE governs non-jury cases, criminal and civil cases, worker's compensation cases, and proceedings in probate court whether a judge or a magistrate presides. Similar, but not always identical rules have been adopted to govern proceedings in most state courts" (Hess, 1999, p. 523).

FRE 702
Holds that "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." \

FRE 702 establishes that the expert's purpose is to help the trier of fact (the judge or jury) understand technical evidence.

The judge rules on the qualifications of the expert relevant to the issue at hand.

Experts may qualify on the basis of specialized degrees and courses, practical experience, specific training, or a particular skill or knowledge.

FRE 703
The facts or data in the particular case upon which an expert bases an opinion of inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

This rule reflects the liberal thrust of the FRE in removing the common law requirement that experts base their opinions on matters within their personal knowledge or matters already admitted into evidence.

Rule 703 allows for three sources of data:

1. Firsthand observation by the witness, as in an examination of a patient
2. Presentation of evidence at trial, which may have been presented by another witness or by the hypothetical question
3. Information from sources other than the expert's direct perception, such as hospital records, nurse, police, or family reports, public opinion surveys, or computer-generated psychological test profiles and reports

The balance here is between opening the door to hearsay and the use of an accepted technique of a type reasonably relied upon by experts in the particular field.

FRE 704
Establishes that "testimony in the form of an opinion of inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." In effect, this rule dispenses with the need for the expert to "dance around" the issue.

FRE 705
States that "the expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The experts may in any event be required to disclose the underlying facts or data on cross-examination."

The Daubert Decision

Daubert v. Merrell Dow Pharmaceuticals (1993) arose when Benedictin was taken by pregnant mothers for morning sickness; subsequently, their children were born with limb reduction birth detects (which they claimed were caused by the drug).

The appeal to the Supreme Court resulted in the Court's replacing the seven-decade-old Frye Standard that called for scientific evidence to have "general acceptance" in a field or be based on a corpus of knowledge. The Court recognized FRE 702 as governing whether the evidence met the two-prong test of "scientific knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue."

Rather than a general acceptance test only, Daubert shifts the judgment of scientific knowledge to the trier of fact with four criteria:

1. Testability of a theory or technique
2. The degree to which theory or techniques have been subject to peer review, such as publication
3. The known or potential error rate of a technique
4. General acceptance by the relevant scientific community (the Frye test)

This case served as a test of the role of the judge as "gatekeeper" regarding admitting an expert's testimony into evidence. Joiner was an electrician who had to make repairs with his hands and arms immersed in fluids containing PCBs (which were banned by Congress in 1978 as hazardous to human health).

Joiner contracted cancer and sued the manufacturers of PCBs, including GE. Expert witnesses on behalf of Joiner introduced animal research that was excluded by the district court judge because the evidence "did not rise above subjective belief or unsupported speculation."

The Supreme Court reviewed the case and found that the appropriate standard for reviewing the judge's ruling concerning the admissibility of scientific evidence is the "abuse of discretion" standard. That is, a judge must ignore logic, settled law, relevance, or reliability to have abused his or her discretion. According to the Court, changing from Frye to Daubert did not diminish the judge's gate-keeping role regarding expert evidence.