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Unformatted text preview: »HenlthPr0fessions: I 7’ 7' A 1.01. The Context for Law and Behavioral Science * There can be no doubt that the legal system’s use of expert opinions from mental health profes— sionals and other behavioral scientists is a matter of considerable controversy. Members of the gen— eral public, the legal profession, and even the mental health profession have all been highly crit— ical of such testimony and the way it is proffered. The public’s antipathy toward clinical opinion appears to stem from the belief that much “ex— pert” testimony is based on “junk science” from professionals who, for a fee, will find evidence of almost anything.1 Although seldom successful,2 highly publicized psychological defenses—often associated with such flamboyant names as the “abuse excuse” or the “urban survival syn- dr01ne”3—have led many in the general public to question the objectivity and expertise of the men— tal health professions}; More generally, since the earliest explicit use of social and behavioral sci- ences in judicial opinions, popular commentators have worried that psychologists and other experts use the legal process to undermine the political judgments of less liberal legislators elected by the people.5 ' Lawyers have echoed these concerns. Even the late judge David Bazelon, perhaps the paradig- matic liberal advocate of extensive use of behav- An UneasyAHiance ioral science in legal decisionmaking, ultimately described himself as a “disappointed lover” cha— grined by clinicians’ overreaching into moral and political domains.6 Indeed, the issues associated with use of the behavioral sciences in the court— room have become sufficiently common and im— portant that traditional mental health law has been joined in law schools by entire courses on use of expert social science evidence.7 As intense as the concerns of the public and the legal world are, they are at least matched, if not overshadowed, by the ferocity of the debate among behavioral science researchers and mental health professionals themselves, as even casual readers of journals in mental health disciplines and psycholegal studies can attest.8 The funda— mental nature of this conflict was illustrated when Jay Ziskin and David Faust argued in Science and other prestigious journals that clinical opin— ions are insufficiently reliable and valid to warrant their use in the legal arena.9 Although more scholarly arguments to the same effect have been made by others,10 the prestige of the forum in which Ziskin and Faust’s Views appeared led to a remarkable professional brouhaha. Their articles not only stimulated special symposia at profes— sional meetings but also provoked replies from both the chief executive officer and the president of the American Psychological Association. H To some degree, the debate reflects the fact 4. I. GENERAL CONSIDERATIONS §1.02 that courtrooms are foreign territory for psychol- ogists, psychiatrists, and social workers. As this chapter makes clear, the legal rules for admission and consideration of evidence do not necessarily conform to the norms of mental health practice and scientific inquiry. The resulting culture clash— es create ambiguity and conflict about the stan— dards to be applied, leading, naturallyrfto Vtherfol-fl lowing question: Does forensic work inevitably result in some compromise of mental health pro— fessionals’ principles or at least in their mode of operation?12 _ intensity of the debate is also heightened by the stakes involved, not just in terms of the public and private interests at issue in litigation but also in terms of image. Much of the emotion in the controversy over mental health professional expertise is traceable to the fact that public per— ceptions—and, to some degree, self-percep- tions—of the science and the profession are closely tied to clinicians’ and researchers’ status in courtrooms and judges’ chambers. On the one hand, lack of recognition by legal authorities is perceived as a challenge to the usefulness of the mental health professions. On the other hand, ac- ceptance of professional opinions that are not consensually accepted in the field is perceived as a threat to the explicit and implicit canons of sci- ence and practice, thus undermining the behav— ioral sciences and‘the mental health professions themselves. , We believe that the various controversies about the use of mental health professionals’ opinions in the legal process have been blown out of proportion and that they reflect a misunder- standing of the purpose of expert evidence and the standard for its admission. In scientific terms, the law expects incremental—not absolute—va— lidity. The question is whether mental health pro— fessionals’ opinions vvill assist legal decisionmak— ers, not Whether the opinions meet a particular standard of scientific rigor. At the same time, we believe that professional credentials by them— selves are not enough to guarantee that opinions will be sufficiently helpful to warrant their admis- sion into evidence. The “moderate” View that we express in this chapter and throughout the book may take some of the sting from both the arguments posed by ad— vocates of outright exclusion and the contentions of those who defend professional prerogatives. Nonetheless, it‘ is important to understand the underlying conflicts because they involve funda— mental differences of epistemology and world- view; they will not disappear with a good-natured exchange of views. Thus, the purposes of this chapter are to analyze the sources of the current Nambivalence about the interaction between law and mental health and to address generally the limits of expertise possessed by mental health professionals. In the discussion of these questions, we make some initial inquiry into the problems of defining who is an expert and for What pur- pose—questions that recur throughout this vol- ume. ' 1.02. Some Preliminary Problems in Law and Mental Health CASE STUDY 1 . 1 Below are excerpts of expert testimony from two different proceedings involving Mike Simpson, who is charged with embezzlement. The issue ad— dressed in the first proceeding, a criminal trial on the embezzlement charges, is whether Simpson was “insane” at the time of the offense. Insanity in this jurisdiction is defined as a “mental disease or defect that causes a substantial inability to appreci- ate the Wrongfulness of the act or to conform be- havior to the requirements of the law.” Q: Now, doctor, your testimony is that the re— spondent is suffering from a pathological gambling disorder? A: Yes. - And this is a mental disease? Yes, it is in the fourth edition of the Ameri- can Psychiatric Association’s Diagnostic and Statistical Manual, and I suppose there are twenty or thirty psychologists like myself who specialize in this area and are convinced it’s a serious problem. What led you to give him this diagnosis? : This individual admits he is preoccupied with gambling; and can’t stop himself from doing it. He feels anxious unless he is gam- bling or planning a gambling trip. He’s now at the point where, even though he’s never been in trouble with the law before, he’s em— bezzling from his company. Etc? 3’6? . Q: A: 1. AN UNEASY ALLIANCE 5 Does this make him incapable of distinguish— in right from wrong? 'Well, here’s a man who normallyknows. the law~we1-1,—wholmowsnboutrightand wrong, but a man who is in a desperate strait. He is under a tremendous amount of stress, does not consider right and wrong. Based on my experience with these people, I don’t think that becomes part of his thinking process. His process is to survive. He’s losing his job, his family, his children, his reputation, every— thing is going down. So he functions this way, in an irrational way which leaves his judgment impaired. And what about his ability to conform his acts to the requirements of the law? He has virtually none. While he probably in— tends to return the money, he can’t help himself from embezzling because of the urge to gamble. Again, based on my experience, people like this are prone to commit crimes to get money. There’s also a study of 70 peo- ple with this disorder which shows that one out of five have committed crimes like forgery, theft, or embezzlement. Whereas, as a conservative estimate, only one of 200 people in the general population commit such crimes, meaning pathological gamblers are 4—0 times more likely to commit these crimes than the average person. This man needs treatment, not punishment. So would you say he’s insane? I would, yes. Mike is acquitted by reason of insanity and is com- mitted to an institution for observation. At the end of a month a commitment hearing is held to deter— mine whether he should remain in the hospital, which is permitted only if Mike is shown to be “dangerous to self or others,” defined as “a likeli- hood that, as a result of mental disorder, the indi— vidual will cause substantial harm to himself or an— other." The lone expert witness at the 15-minute hearing, a member of the hospital staff, testifies as follows: Q: What is Mr. Simpson’s condition at this time? A: He’s unresponsive to treatment. Q: Does that make him dangerous to others or self? A: He is still dangerous [here the doctor de— scribes the same study described at trial]. There is no guarantee he won’t steal again to feed his habit. Also, according to DSM-IV, of individuals in treatment for pathological , ,7 7 gambling, 20% are reported to have at— tempted suicide. 7 H 7 ' ' ’ ' QUESTIONS: Applying the test of Frye v. Unit— ed States [see § 1.04-(c) for a discussion of this case], at least one court has held that clinical testimony attempting to link the pathological gambling diag— nosis to insanity is inadmissible.13 On the facts of this case, do you agree? Assuming that such testi- mony is admissible as a general matter, is any of the specific language of the witness legally or ethically prohibited? Assuming the studies described by the witnesses are accurately depicted, should their re- sults be admissible? What else would you like to know about them? Does it matter whether the clin- ical or research testimony is presented in a criminal trial by the defendant as opposed to the state at a commitment proceeding? Would your answer to any of these questions change in a jurisdiction that ' followed Daubert v. Dow Pharmaceutial [see § 1.04(c) for a description of this case]? As suggested in the introduction, some of the perceived “Clashes” between law and the mental health professions reflect fundamental conceptual differences. These are discussed in the next sec- tion. Here we tackle some of the more practical reasons for tension between lawyers and mental health professionals. (a) Bridging Gaps in Training Discussions of what is “wrong” in the relationship between law and the mental health professions have tended to focus on relatively superficial problems of communication. Typically, there is a suggestion that the core problem is that lawyers and mental health professionals do not “speak the same language.” Hence, lawyers may be awed when a mental health professional appears to be able to sweep away the complexities of the human mind with profundities about “diffuse ego bound— aries,” and mental health professionals may com— plain that the sorts of questions that lawyers ask force them to compartmentalize their observa- tions in foreign and untenable ways. If the tension between law and mental health is the result of se- mantic difficulties, it should be erasable by facili— tau'ng communication between the two profes- 1",?“ "firmn- A 6 . I GENERAL CONSIDERATIONS §1.02 m sional groups. Thus, problems should be remedia- ble through some combination of cross—discipli- nary training and transformation of legal tests into language and concepts commonly used by mental health professionals. Such a view strikes us as naive. We do not mean ,to minimize the need for training, of course. In- deedrthisbookisoriented—towardfacilitationofan understanding of the kinds of questions that the law poses for mental health professionals. We, like others, have been troubled by “expert” mental health professionals who testify on a particular le- gal issue without any understanding of the nature of the issue they are purporting to address. We are also troubled when legal authorities claim igno— rance of “medical” problems in the law and effec- tively avoid hard decisions by demanding conclu— sory opinions from mental health professionals. Both examples are indicative of inappropriate avoidance of “confusion by the facts.” Professionals whose practice takes them into interdisciplinary matters, whether legally or behaviorally trained, have an ethical obligation to learn enough to be able to function competently in such a context. Such training will not eliminate interdiscipli— nary problems, however. Simply inculcating a common understanding of key terms will not eradicate the philosophical problems inherent in interdisciplinary endeavors. A well-known exam— ' ple of this fact was the failure of the District of \ Columbia Circuit's experiment in the 1950s with the Durham rule (or product test) of insanity. Concerned with the unhelpfulness of much psy- chiatric testimony in insanity cases, that court, in an opinion by Judge Bazelon, concluded that the problem would be alleviated if the test language were reformed to make it congruent with the jar— gon of the mental health professions. According- ly, rather than force mental health professionals to compartmentalize the mind into specific faculties (as the historic M ’Naghten test appears to de— mand), the Durham test asked mental health pro— fessionals to determine whether the criminal act was the “product of mental disease or defect” [see § 8.02(b) for further discussion of these tests]. Essentially, the question was simply one of Whether the legally relevant behavior was caused by the defendant’s mental illness, a concept as— sumed to be well within the repertoire of mental health professionals. It should have come as no surprise that Durham ultimately failed, however.14 As discussed later in this chapter [§ i.O3(a)], there is no coherent con- ceptual basis for determining which behaviors are produced by “free choice” and which behaviors are the product of mental illness. The question rmakes little sense in 'a deterministic paradigm. ’ ' Simply—mediealizring-tlieeterms-ofthe‘insmitytesfi” does not eliminate the much more fundamental I philosophical differences between the law and the behavioral sciences. (In Case Study 1.], for exam- ple, the “medical” conclusion that Mr. Simpson’s embezzlement was the product of a pathological gambling syndrome would still not answer the ul— timate legal question of whether he should be held responsible for it.) Similarly, these conceptu- al differences between law and the behavioral sci- ences will not be eliminated, although they may be unmasked, by acquisition of a working knowl— edge of key concepts in the law (for mental health professionals) or the behavioral sciences (for lawyers) . (b) Bridging Attitudinal Dif erences Just as it is naive to believe that problems in the interaction between law and mental health Will be eliminated through training programs, so too is it simplistic to view these conflicts as mere reflec— tions of attitudinaldifferences. Those who em— phasize the significance of these differences tend to perceive lawyers as concerned primarily with the sanctity of legal principles in the abstract and, accordingly, with the vigorous advocacy of civil liberties for people with mental illness without regard to their needs. Conversely, mental health professionals are perceived as paternalistic and prone “to try to help” regardless of the cost of lib— . erty, ~with theresult that they. advocate hospital— ization treatment whether the context is civil commitment, criminal trial, or sentencing. Such perceptions lead to the conclusion that conflicts between the law and the mental health profes— sions would be largely eliminated if some middle ground of attitudes toward people with mental disabilitieswere reached; the issues then are sim- ply ones of consciousness—raising. Undoubtedly, there are substantial differences in the socialization of the professions. However, "believe that differences between libertarian paternalist attitudes are overemphasized as a "ureerf—disciplinanymonflict._Eirst,_the_attitudi- g1 differences amongftjhe mental health profes- ons themselves may be as great as, or perhaps even greater than, those between lawyers and .mental health professionals generally.15 Thus, the American Psychiatric Association has commonly advocated less deference to patients’ wishes and less legalistic procedures in decisionmaking about treatment than have the American Psychological Association and the American Orthopsychiatric Association.16 Second, research suggests that lawyers tend to be paternalists themselves. when they are actually confronted with people who have been labeled as having a mental illness. Poythress, for example, was unable to train lawyers to adopt a more adversary stance when representing respondents in civil commitment ac— tions.17 Although the lawyers were taught the in‘ adequacies of testimony by mental health profes- sionals (e.g. , problems of reliability and validity of diagnosis), they persisted in avoiding careful cross—examination of expert witnesses in com— mitment proceedings because of a belief that it was in the best interests of their clients to be hos— pitalized and deprived of liberty. In short, partic- ular attitudes are not the province of any one pro— fession. Rather they are, again, the product of fundamental philosophical positions that may not be reconcilable. (c) The State qfthe Art A more significant source of trouble between law and the mental health professions, although still one that is practical rather than philosophical, is the paucity of scientific knowledge concerning hu— man behavior in many contexts. Even if both lan- guage and assumptions can be matched sufficient— ly to allow relatively easy translation of knowledge from the behavioral sciences into legal concepts, there is often little legally relevant knowledge to apply. Moreover, if there is a relevant body of psy- chological knowledge, the conclusions that can be _ drawn from it may not be sufficiently reliable to warrant their use in legal decisionmaking. The state-of—the—art problems may be divided into three types. First, there are general problems AN UNEASY ALLIANCE of uncertainty in the behavioral sciences. That is, ' ", often there is a question of ,whether there is suffi- cient rigor in the behavioral sciences to warrant the admissibility of Opinions based on these disci- plines or, if admitted, to warrant placing much weight on them. It is important in this regard to distinguish between scientific opinions about processes of human behavior (e. g, evidence from experiments about precipitants of aggression) and clinical opinions about psychological functioning of particular individuals (e. g., formulation of the causes of aggression committed by a particular in- dividual at a particular time). In the former in- stance, the weight placed on opinions will be lim- ited by the level of explanation achieved}8 the degree of control for extraneous sources of vari- ance in the relevant studies,19 and the degree of generalizability in the findings of the relevant studies to situations outside the laboratory. 20 Clinical opinions also should be derived from general, scientifically verifiable principles of be— havior, and their rigor can often be determined through studies (many of which are described in this book) of their reliability21 and validity,22 yet ultimately they are often more art and intuition than science :23 Irrespective of general uncertainties in the be— havioral sciences, a second type of state-of—the-art problem stems from gaps in the current state of k...
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