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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 knowledge with respect to questions asked by the law. For example, there is a substantial literature on the effects of divorce on children. However, as discussed in Chapter 16, little of that research is directly applicable to questions pertaining to dis— positions of child custody disputes, either in indi- vidual cases or as a matter of policy. Similarly, al— though there are numerous studies concerning the efficacy of training people with mental retar— dation in self-help and social skills, there is virtu- ally no research on training women with moder— ate or severe mental retardation in use of contra- ceptives, avoidance of sexual abuse, and mainte— nance of menstrual hygiene—all skills relevant to determinations of whether a person should be in- voluntarily sterilized.24 Thus, although the general state of knowledge with respect both to effects of divorce and to training of people with mental re— tardation may be rather advanced, the literature may be virtually barren with respect to speci ic legally relevant questions. 8 I. GENERAL CONSIDERATIONS §1.03 A third state—of-the-art problem arises when questions asked by the law are inherently unan— swerable. Sometimes the differences between possible dispositions are sufficiently subtle that it is extremely unlikely that behavioral science would ever advance to a point where their effects would be distinguishable. To give an exh'eme ex— ample, one of us was once asked to evaluate a child in a divorce dispute in order to assess the relative impact of spending one week a year ver- sus two weeks a year with his mother. 1.03. Paradigm Conflicts While it may be difficult to reconcile variations in attitutde, flaws in training, or tensions created by state—of—the—art problems, it is differences in par- adigrn that are mostly likely to cause rifts be— tween the law and the behavioral sciences. This section addresses the following questions: How is interaction between lawyers and mental health professionals likely to be affected by differing ways of conceptualizing problems? Do the differ— ences in the philosophies of law and science imply inherent conflict? \ (a) Free Will versus Determinism Perhaps the most obvious philosophical difference between the law and the behavioral sciences is that the former is predicated on an assumption of free will whereas the sciences are generally solid— ly determinisiic. Indeed, the behavioral sciences are generally directed toward an explanation or prediction of the factors determining behavior. On the other hand, the law holds individuals re— sponsible for their conduct, unless the behavior_ appears to be the product of a will overborne by external pressure or internal compulsion, or of a mind so irrauonal as to raise questions about the individual’s capacity to function in the communi— ty of independent moral actors.25 In the present context, the significance of these differing underlying assumptions about mo- tivation and freedom .is that there is no basis in ' ' any of the prevailing models of abnormal behav- ior to differentiate “caused” or “overborne” behav— ior from behavior that is the product of free and rational choice. In a provocative analysis of the use of voluntariness in determining the validity of confessions, Grano recognized this point: [E]ven assuming a person’s will can be over— borne‘ without rendering therperson uncon— scious, the tools do not exist to tell us whether - therbreaking‘p'oint has been reached. If we re— ject, as we must, a literal notion of overborne wills, our only alternative is to shift from the empirical inquiry regarding what happened to a professedly normative inquiry regarding the de— gree of mental freedom necessary to produce a “voluntary” [act] . 26 A cursory review of major models of abnor— mal behavior underscores the incompatibility of their basic assumptions with legal decisionmak— ing. The most marked example of such incompat— ibility is the behaviorist model, which conceptu- alizes behavior as the product of the individual’s history of rewards and punishments in combina— tion with the specific contingencies of reward and punishment present in a given situation.27 Be— cause a]] behavior is thought to be so determined, there is no basis in behaviorist thinking for identi- fying “voluntary” behavior. Even models of abnormal behavior that super- ficially are more compatible with legal assump- tions about the origins of conduct on closer ex- amination fail to fit. Psychoanalytic theories of behavior provide individual, intrapsychic explana— tions of conduct. Because. they may “explain” the underlying motivations of people, they may ap— pear to provide a measure of which behavior was ’ in fact compelled. The problem with such appli— cation is that psychoanalytic psychology is general— Iy deterministic. As reflected in Freud’s paper “Psychopathology of Everyday Life,”28 psycho- analysis posits that much behavior that may be partially the result of rational decisions or con— scious choices (e.g., embezzling money in order to pay‘ one’s bills) may also be “overdetermined” by unconscious motives (e. g, a desire to be pun— ished). In the example givenp‘most people would View the thief as criminally responsible and in control of his or her behavior; there is no basis in psychoanalytic theory for making such a determi— nation, however. Even if one makes a distinction, 'as do later psychoanalytic theorists,29 between behavior that is motivated initially by conflict- aden experiences (and therefore “driven”) and Iehavior that is “conflict free,” such a distinction \ompelled versus free behavior.30 As May, an em- inent existential theorist, pointed out, a concept lof “autonomy of the ego” (i.e. , the rational, “exec- 'vaitive” part of the psyche) "becomes something akin to Descartes’ theory that the pineal gland, the organ at the base of the brain between body and head, was the place where the soul was locat- ed.”31 If the personality as a whole is not free, it is hard to conceptualize a part of the personality as autonomous outside its totality. Unlike members of the two schools of thought discussed thus far, humanistic/ existential theo- rists (e.g. , Viktor Frankl, Abraham Maslow, Rollo May, and Carl Rogers) have generally started from a fundamental premise that human behavior is the result of free choice. In this instance, how- ever, the problem is that the psychological model is too undeterministic to match'legal assumptions. Existentialists generally hold that, even in the most dire circumstances, people ultimately have choices. A final model of abnormal behavior, which more closely matches legal assumptions about the causation of behavior, is a true (organic) medical model}2 To use a common textbook example, suppose a man standing near the edge of a cliff has an epileptic seizure. As he falls to the ground, he bumps a bystander and knocks that person off the cliff. The seizure behavior was clearly not the product of voluntary, conscious choice. Punish— ment for a symptom of disease would offend most people’s sense of justice.” Analogously, if legally relevant behavior could be shown to result directly from a disease process, that behavior would also be excused. This principle is embed- ded in the language of insanity standards, which generally require that a threshold of “mental dis- ease or defect” be crossed. Rarely, however, is there such a direct relation— ship between organic condition and beha’vior.‘ For example, with respect to severe mental disorders for which there appears to be a genetic basis, the relationship is generally one in which genetic fac— tors account for only a portion of the variance. Commonly, genetic background is thought mere- ly to predispose the individual to psychopathology, such that psychopathology is activated only when 1. AN UNEASY ALLIANCE I 9 oes not provide a tenablelbasis for identifying " ' the individual has experienced a pathogenic, stressful environment.34 Moreover, neither the specific anatomiCal or biochemical abnormality that is inherited nor the sp‘e‘cifi‘cme‘chmfism‘of'get— ' netic transmission is likely to be definitively known, although such knowledge is rapidly grow- ~ 35 in . gEven with wholly organic explanations for be— havior, moreover, we inevitably uncover a tension between determinism and free will. Lest an un- tenable dualism remain, we are left with an as- sumption that all behavior is controlled by the nervous system. There is no apparent philosophi— cal basis for distinguishing between behavior re- sulting from a central nervous system lesion and behavior resulting from a“normal” system, as it is shaped by genetic composition in interaction with life experiences. ' In short, if the clinician is theoretically consis- tent, the paradigm vvithin which mental health professionals (of whatever theoretical orienta- tion) work would appear to be in inherent con— flict with legal worldviews. Notwithstanding at— tempts at reconciliation by some commenta— tors,36 the philosophical assumptions that govern these disciplines seem to a large extent mutually exclusive.‘These conflicts are of substantial signif— icance as a matter of policy in attempting to apply the behavioral sciences or clinical opinions to le- gal problems. However, the individual expert need not be paralyzed by this dilemma. Indeed, there is at least a partial solution: Mental health profession— als should be neither permitted nor cajoled to give opinions on the ultimate legal issue (i.e., the conclusion that the factfinder must ultimately draw—~e.g., was the act voluntary?). Although practical problems result from this position [see § 18.05], we feel that clinicians should, whenever possible, resist drawing causal conclusions with respect to voluntariness or responsibility when the concept does not make sense within a scientif- ic paradigm. Rather, the relevant factual findings should be presented so that the factfinder (i.e., the judge or the jury) may fit them into the legal framework and may make whatever moral—legal judgments follow. Thus, for example, in assessing the “voluntariness” of Mr. Simpson’s embezzle— ment [see Case Study 1.1] the clinician might as— sist the factfinder by describing the types of 10 - I. GENERAL CONSIDERATIONS §1.03 choices Simpson confronted, given his particular characteristics and his specific situation. Howev— er, whether his behavior was “involuntary”— whether the choice was so hard as to represent an “overbearing” context—should be left to the factfinder. This “ultimate issue issue” is discussed each side have the opportunity to put forward whatever evidence best makes its case. This is not to say that the law should or does ignore reality, only to indicate that the goal of truthfinding in law is subordinate to the pursuit of justice—a synthesis of two antithetical views.37 Hence, as long as they maintain intellectual integrity and at greater length below 1:04;]. ' .7 7 ~ 7 (b) The Process ofFacIjinding Stillanother source of potential stress in the rela— tionship between the law and the mental health professions lies in the nature of the process of in- - quiry on which the disciplines rely. It is common— place for mental health professionals to express discomfort with the adversary process employed in Anglo-American law. Part of this discomfort probably stems from the differing social purposes of the law and the behavioral sciences. The behav— ioral sciences (even more so, the mental health professions specifically) are dedicated to the de- velopment and application of knowledge de— signed to promote positive interpersonal rela- tions—in a sense, to prevent or at least to dampen social conflict. Although the ultimate social func— tion of law in resolving disputes is compatible with the ends served by the behavioral sciences, the law accomplishes this function by sharpening conflict, so as to ensure that issues in dispute are carefully posed and that they are resolved fairly in accordance with societal values. In view of these differing functions, it would be unsurprising to find disciplinary differences in the comfort expe— rienced when dealing with conflict generally and adversariness in particular. Although procedural differences may stimulate interdisciplinary problems, this problem may be exaggerated in significance. It can be largely re— solved by remembering that the purpose of foren- sic evaluation differs qualitatively fromV the pur: , pose of other forms of observation and study in the behavioral sciences or the mental health pro— ' fessions. Although mental health professionals may correctly complain that the adversary system distorts their conclusions by stimulating the pre— sentation of only the evidence that is favorable to one side, they should understand that the legal process is designed not just to uncover truth but also to render justice. Due process demands that” , toric legal values that they carry precedent be- vrecognize~the-lirnits—of—their<observations—andsex pertise, mental health professionals should be undisturbed if they are “used” by one side in the dispute.38 A similar source of tension comes when ex-' * perts find that their observations are “pigeon- holed” into concepts that seem to strip the data of their richness. Thus, one often observes a lawyer straining to have an expert curtail an intricate ex- planation about the subject’s relations with the victim and urging the expert to “stick to the point”———the point being, perhaps, whether the defendant “planned” the attack on the victim. Similarly, clinicians may feel constrained by cer- tain legal rulings, such as the inability to talk about prior criminal offenses. Concern about these practices again arises from a misunderstand— ing of purpose. The law is fundamentally conserv— ative. As legal scholar Paul Freund noted, “no No— bel Prize is awarded for the most revolutionary judicial decision of the year.”39 The reliance on precedents and rules of law ensures the mainte- nance of the social fabric and the even-handed and predictable administration of justice. For in— stance, a single—minded focus on planning may be dictated by the jurisdiction’s homicide law which, for reasons developed over scores of years, has pinpointed premeditation as the primary criteri- on for establishing murder. Similarly, the eviden- tiary rule barring evidence of past crimes rests on the conclusion, stemming from centuries of trial experiences, that otherwise the factfinder may convict a person for what he or she did in the past rather than deliberate on the current charge. Thus, although at times examination of the evi— dence within a narrow historical framework may seem to pull attention away from the best inter— ests of the parties, sucli‘harrowness of concern ensures that specific points of dispute will be re— solved justly. There is a problem, however, when jurists be- come so focused on normative analysis and his- "Fwy—V..-~. wn\ .. §1.o3 1. //_______’__————————————-——-—— yond its logical bounds. Sometimes, in their zeal to protect legal values, judges seem to derive an “is” from an “ought”———that is, to assume that the should. Such blinders to the real world promote unfair decisionmaking. For example, limits placed by the United States Supreme Court on minors’ autonomy and privacy have frequently been os- tensibly based on empirically unsupportable as- sumptions about adolescents’ competency and family life (cg. , that youth under 18 are not com— petent to make treatment decisions).40 It is unjust and intellectually dishonest to base the depriva- tion of liberty on invalid assumptions. If a deci— sion is in fact based on particular values, those. values should be clearly expressed. Thus, in terms of the example given, if the Supreme Court wish— , es to support a particular View of family autono- my, it should make clear its preference for that policy. On the other hand, if there really are em— pirical assumptions underlying the analysis, whether of case facts or of legislative facts, the parties should be able to expect that a persuasive display of evidence on point will turn the case.“ (c) The Nature Qfa Fact Assuming for argument’s sake that the clash in as- sumptions about causal relations and the differ— ence in means of discovering such relationships need not be major obstacles in the interaction be- tween law and the behavioral sciences, there still remain fundamental but more subtle and probably even more problematic epistemological issues. Specifically, major disciplinary differences exist in the conceptualization of a “fact.” This definition is— sue is closely linked to the process issue just dis— cussed, in that whether the law and the behavioral sciences recognize particular information as a rel- evant “fact” depends on whether the respective truthfinding process has been followed. However, for clarity of analysis, we separate the process of finding facts from the question of whether a fact exists and turn now to the latter issue. (I) From Probability to Certainty Perhaps the most basic problem rests in differing conceptions about the role of probability assess- AN UNEASY ALLIANCE 11 ments. Although the sciences are inherently prob— abilistic in their understanding of truth, the law demands at least the appearance of certainty, per-. Weldin-factoperates-filtheeway-that—they—think—itéhaps.b ecausaoflthennagnimde_andintexoicabjlity____ of decisions that must be reached, in law. As Haney has noted, “there is a peculiar transforma- tion that probabilistic statements undergo in the law. The legal concept of ‘burden of proof,’ for example, is explicitly probabilistic in nature. But once the burden has been met, the decision be— comes absolute—a defendant is either complete- ly guilty or not.”42 To give an example of this difference in con- ceptualization of facts, suppose that a construc- tion company is charged with negligence after a bridge that it built collapses. Specifically, the company is alleged to have used steel rods that were too small for the construction needs. A civil engineer is asked, as an expert, to measure the rods and to determine thelength that the rods should have been in order to provide a safe struc— ture. The engineer .might take several measure- ments of the rods and conclude that the probabil- ity is greater than 0.95 that the true length of the rods was between 1.35 meters and 1.37 meters, when measured at 75 OF. The engineer then might note the probability of contraction to a given length at the lowest temperature observed in the particular locality. Still another probability judg— ment might be made as to the likelihood of an even lower temperature ’5 occurring in the future. On the other hand, from a legal perspective, ei— ther the rod was too small or it was not. Although the tolerable risk of error is acknowledged in the standard of proof applied (cg, preponderance of the evidence), the conclusion of fact is made in all—or-none fashion. Although this difference may seem rather triv— ial at first glance, its import is actually quite sub- stantial. There is a danger that, because of the law’s preference for certainty, experts will over— reify their observations and reach beyond legiti— mate interpretations of the data both to appear “expert” and to provide usable opinions. Similar— ly, legal decisionmakers may discard testimony properly given in terms of probabilities as “specu— lative” and may defer instead to experts whose judgments are expressed in categorical opinions of what did or will happen. The result is a less properly informed court. The risk of distorting the factfinding process is particularly great in the behavioral sciences given that single variables rarely account for more than 25% of the variance in a particular phenomenon and that the reliabili— ty and validity of observations by mental health professionals are far from perfect. , Part of the problem is simply intellectual dis— honesty, however well intended. In the desire to be helpful, experts may permit themselves to be seduced into giving opinions that are more cer- tain than the state of knowledge warrants. In our View, experts are ethically obligated to describe the uncertainty in their conclusions, even though such honesty may result in the courts’ reducing the weight accorded the testimony, even unduly $0.43 The problem is not simply one of professional ethics, however, or even of overzealousness by at- torneys in their attempt to elicit strongly favor— able opinions from experts. The style of clinical decisionmaking itself (as opposed to that of scien- tific research) often may not be conducive to the truthfinding process. Although researchers cus- tomarily report their findings in terms of proba— bility statements, practitioners often must make judgments that are of an all—or—none character. Because of the need to develop and implement treatment plans, clinicians must make decisions as to what the problem is‘and as to how best to treat it. Moreoverfbecause of placebo effects, the effi- cacy of treatment may be enhanced as a function of the display of confidence by clinicians in the treatment they are administering. In short, even if mental health professionals are fully cognizant of the weaknesses in the scientific basis of their work, they are probably advised to behave as if there were near-certainty in their formulations and the efficacy of their treatment. The problem in the present context is that if this style of pre— sentation is carried into the reporting of forensic ' ' _ evaluations,_the legal factfinder may be misledas to the certainty ofrthe conclusions. Unfortunately, this style of presentation—es- pecially when it is idiographic in nature (i.e., case— centered rather than based on group data)——is preferred by the courts, as well as lawyers. For in- V stance, the testimony in the Simpson proceedings [see Case Study 1.1] that Simpson was irrational or anxious may well be given more credence by the legal system thanthe testimony describing the 12 I. GENERAL CONSIDERATIONS §1.03 research on the percentage of those with the pathological gambling diagnosis who commit forgery and other crimes. Although we do not wish to denigrate careful clinical testimony, we also find it unfortunate if, as they sometimes do, the courts reject the testimony of researchers whose work sheds lighton the behavioral phe- nomenon in question. This rejection is especially serious if the topic is one on wlfich academic ps‘y— chologists are more likely to be expert, such as the reliability of eyewitness testimony.44 In any case, the general point is that clinicians involved in the legal process should be careful to think like scientists to give an accurate picture of the proba— bilistic nature of their facts, even if this stance heightens the discomfort of both the clinician and the court. This general admonition is appropriate even in jurisdictions that attempt to transform probabilis- tic judgments into certain facts by application of a standard of “reasonable medical (psychological, scientific) certainty” when deciding the admissi— bility of expert testimony. As Martin has pointed out, professionals are likely to have idiosyncratic subjective judgments of “reasonable certainty”;"’5 moreover, even “uncertain” opinions may still be relevant and of assistance to the trier of fact pro- vided that the conclusions have some probative value and are not unduly prejudicial. Most impor— tant, .the standard of reasonable certainty may in fact result in prejudicial opinions, because the fact that the opinions are probabilistic is masked by the certainty standard. Experts should leave to the judge the question of whether the opinions are so uncertain as to be unhelpful.46 (2) From Group to Individual Assuming that the probabilistic nature of the opinions is acknowledged, another problem aris— es. As already noted, the scientific data base for the behavioral sciences on which all researchers and many clinicians rely is generally nomothetic: That is, principles of behavior are derived from “comparisons of groups differing on a particular di— mension. Given that, in psychology, a particular variable will almost never perfectly accOunt for the variance in another variable, the problem is , one of how to apply psychological findings based §1.o3 1. on group data to individual cases. Although this problem is not one for the experts themselveshit V is a major conceptual obstacle for legal factfinders and may result in rejection of the expert’s opin- ions. " Some case examples may indicate the signifi- cance of the philosophical dilemmas that are pre— sented when applying nomothetic data to the res— olution of individual cases. Case 1.47 The defendant’s 14-year-old daughter ac- cused him of raping her. Two months later (and on two subsequent occasions), she wrote statements recanting her accusation; she said that she had lied so she could get “out on her own.” However, at trial, she returned to her original story. Experts testified that such incon— sistency is common among victims of incest. Case 2.48 The defendant was charged with third-degree murder of his three~month—old son. An expert on child abuse testified that the pattern of injuries was consistent with “battered child syndrome.” He testified further that abusing parents tend to have been abused as children themselves and that they also are prone to a number of negative personality characteristics (e.g., short temper and social isolation). The state then called two witnesses from the defendant’s past (his caseworker as a youth; an employee of a therapeutic school he had attended). The caseworker testified that the defendant had been abused; both testified that the defendant had many of the personality traits ideniified by the first expert. Other witnesses provided addition- al testimony suggesfing that the defendant possessed characteristics identified by the expert as consistent with those common to battering parents. Case 3.49 The defendant was stopped by Drug Enforce— ment Administration (DEA) agents after she disem— barked from an airplane at the Detroit Metropolitan Airport, The DEA agent’s suspicions were aroused be- cause the defendant’s behavior fit a “drug courier pro- file”: (1) the plane on which she arrived had originated in a “source city” (Los Angeles, thought to be the ori— gin of much of the heroin brought to Detroit), (2) she was the last person to leave. the plane, (3) she appeared to be nervous and watchful, (4) she did not cl'aim any luggage, and (5) she changed airlines for her flight from Detroit. On questioning, the defendant appeared nervous, and it became known that her ticket had been purchased under an assumed name. A search revealed heroin hidden in her undergarments. The defendant contested the search on the ground that the agents had no reasonable basis for suspecting that she was in— volved in criminal activity and for stopping her for an > the first 18 months of the surveillance based on behav— 7 » ioral profiles, agents had searched 141 personsrin 96 A» / AN UNEASY ALLIANCE 13 investigation. Testimony at trial indicated that during encounters and had found illicit substances in 77 in— stances. Case 4. An offender in Michigan is denied parole The-1 cause he is a “very high” assaulfive risk, Of parolees whose behavior fits this Category, 40% are rearrested » and returned to prison for a violent crime while on pa— role. The offender protests that he has been placed in the very-high-risk group because of a juvenile arrest for an offense of which he was never convicted. More- over, he asserts that he has “reformed” and that he should be considered to be among the 60% of very— high-risk offenders who will not be recidivists. These four cases starkly pose the question of whether attention to probability data in the legal system is legitimates0 The cases represent four different problems (respectively, whether a crime occurred, the identity of a past legal actor, the identity of a present legal actor, the identity of a future legal actor). Is the issue of Whether to con— sider this type of probability evidence merely a function of its reliability and explanatory power, or is there something inherently unfair about de- terminations of past, present, or future guilt on .the partial basis of group data? A thorough consideration of these issues has been presented in an influential article by Tribe,51 who concluded that, for the most part,52 the law should bar evidence expressed in mathematical probabili’u'es. Tribe raised a number of objections to “precision” in the consideration of evidence: 1. Probability estimates are themselves inher— ently probabilistic, in that the validity of the prob— ability itself must be considered. For example, in a case in which eyewitnesses saw a brown—eyed, brown-haired male rob a bank in a small Finnish town, jurors' assessment of the probability that a defendant who meets the physical description and was found in the town is the robber must take into account the probability of the intitial eyewit— ness’s account and the probability of the validity of the statistics indicating how often people with these characteristics are found in small Finnish towns. Consequently, the presentation of a single statistic or even a string of stafistics may be de- ceptive. Moreover, jurors" consideration of the data may be complicated by statistical interdepen— dence. For example, brown eyes and brown hair are correlated, so one cannot do a simple Bayesian computation53 to learn the probability of their joint occurrence. 2; The presumption of innocence may be ef— fectively. negatedlay 7 Permittirig consideration of ' the probability that a person with X Characteristic is guilty.54 For instance, direct consideration at trial of such probabilities will necessarily force the factfinder to include in the calculus the proba— that is associated merely with having been brought to trial. Presumably, this initial probability is likely to be greater than zero, de- spite legal assumptions to the contrary. 3. Soft variables will be dwarfed by more eas— ily quantifiable ones.55 To return to our example of the Finnish bank robber, the attention to the defendant’s physical characteristics might divert attention from the probability that he has been framed. 4-. The “quantification of sacrifice” (i.e., the recognition of the risk of a wrongful conviction) is intrinsically immoral.56 There is something in- tuitively unjust in telling a defendant that the jury is Willing to tolerate X risk of error in convicting him. 5. Reliance on statistical evidence dehuman— izes the trial process by diminishing jurors’ ritual— ized intuitive expression of community values.57 Rather than clarify the jury’s role in expressing the will of the community, statistical evidence will obscure this role and make the legal process seem alien to the public. Although Tribe has articulated important is— sues, we are more persuaded by Saks and Kidd’s critique of his article.58 First, Tribe’s analysis re— lied in part on unverified psychological assump— tions (e. g. , jurors will be overinfluenced by quan- tified evidence and jurors in the present system feel subjectively certain in their judgm : they reach a verdict based on a standard of “be— yond a reasonable doubt”). Second, research on intuitive information processing of the type pre- ferred by Tribe suggests that jurors will make er- rors of analysis in their consideration of implicit- probabilities unless the actual probabilities are brought to their attention. Third, as Tribe himself acknowledged, all evidence is ultimately proba- ents when 14 1. GENERAL CONSIDERATIONS §1.03 bilistic, regardless of whether it is quantified. Simply pretending that it is not and ignoring the clearest, most specific evidence does not lead to morally superior decisionmaking. At the same time, accuracy of evidence is not the only concern. Other legal considerations may ' counsel limiting or excluding even relatively reli- 7 able probability-evidence in—some types of cases. Two such concerns are particularly important. The first is that certain types of information used in probabilistic testimony, although scientifically relevant, may not be legally cognizable. For in— stance, reliance on race as a statistical predictor may be impermissible for constitutional reasons, even if it is correlated to a legally relevant vari— able.” Indeed, some have argued that, in some settings, every factor over which one has no con— trol should be banned as a basis for an actuarial determination.60 A second concern is the effect probabilistic in— formation may have on the factfinder. Tribe exag— gerated the layperson’s inability to understand such information. But there is a danger that, if and when it is understood, statistical information will assume too much prominence in the factfind- er’s decisionrnaking process, at least when it is used by the state to bolster the preconceived and often incorrect notions of the factfinder. This danger of “prejudice,” to use the legal term,61 i probably greatest in the criminal context in cases such as- the four described above, where the stakes are high both in terms of threats to individual freedom and to public welfare. Probably the least prejudicial use of probabilis— tic information is in connection with police inves— tigation. Using construct a “profile” of offender characteristics S behavioral science techniques to that might be associated With a particular kind of crime, law enforcement agents have tried to nar— row the range of suspects in a given case (as in Case 3). Although this approach is not without problems,62 at least it is relegated to the inves- tigative phase of trial, where probability assess- ments areinherent thus more easily counte- nanced.63 k“! Use of such evidence in criminal adjudication (Cases 1 and 2), Where the legal objective is to determine definitively whether this defendant committed a crime, is much more problematic. For instance, when applied to a criminal defen— §1.03 1. AN UNEASY ALLIANCE 15 __’____’_—______———————————-——-—-————— dant on trial (as in Case 2); such evidence is char- “ acter evidence, which is not ordinarily admissible unless the defendant puts Character at iss’ue’by claiming that he or she not the type of person who would commit the crime.“ Even though there may be a substantial correlation, revealed by well-designed research, between particular traits and involvement in particular kinds of of— fenses, such information is considered too preju- dicial to permit except in response to defense as- sertions. Given a presumption of innocence, de- fendants must be convicted on the basis of what they did, not who they are. l The character evidence rule is not applicable when profile evidence is used to suggest a crime occurred (Case 1). Thus, initial prosecution use of such evidence has often been permitted, most often as expert testimony to suggest that the pur— ported victim shows behavioral characteristics exhibited by victims of a particular kind of of- fense [see §§ 8.03(c), 15.04-(c)(4)]. Here too, however, syndrome evidence can create prob— lems. Even if it is strong scientifically, it may be inherently misleading because of the difficulty most people have in processing base rates.65 For example, Table 1.1 presents a hypothetical case in ‘ which an extraordinarily valid profile of a sexual- ly abused child—far more valid than anything currently available—still would result in only a 32% probability that a randomly selected child showing the profile (an assumption consonant with the presumption of innocence) would have recently been abused. Yet a judge or jury, once hearing that the victim met the profile, would probably not believe the probability to be so low. Nor would telling them how low it is be likely to diminish the profile’s impact, as the mere fact that a prosecution has been brought already has creat- ed the strong impression that a crime must have been committed. Thus, a “defendant-first” rule, analogous to the character evidence rule, might be appropriate here as well unless the profile evi- dence is very strong. ' In forward-looking decisions (e. g. , sentencing, as in Case 4), the inquiry is, as with investigation and unlike at trial, inherently probabilistic; actu— arial data are thus directly relevant [see § 9.09(c)]. Here, too, however, the possibility is great that such data will overly impress the factfinder, at least when used by the state to con— Table 1.1-. » . r -. , Probability That a Child Fitting a Hypothetical Profile of a Sexually/Abused Child Actually Has Beern-Rec-ently-Abused ' 1. There are about 65 million children and youth in the United States. , 2. Assume that 5% have been sexually abused recent— ly.“ 3. Therefore, 3.25 million children and youth have been recently sexually abused; 61.75 million have not. 4—. Assume that 90% of the children found to fit the profile of a sexually abused child on'the Melton Magnificent Measure (MMM) have recently been sexually abused, while 10% of those who fit the profile have not been abused” 5. Sally Doe fits the MMM profile. What is the probability that Sally has been recently sexually abused? 3.25 million X 0.90 = 2.925 million true positives (TPs) \ 61.75 million X 0.10 _= 6.175 million false posi- tives (FPS) 2.925 million 71’s '1' 6.175 million FPS = 9.1 mil— lion positives (Ps) 2.925 million TPs divided by 9.1 million P5 = 0.32 Therefore, the hypothetical probability (under a sce- nario of far more pronounced base-rate differences than is true in reality) is only about 1 in 3! “This hypothetical percentage probably substantially exceeds the actual base rate of recent sexual abuse in the general pop— ulation of children. Community surveys (most of them ret- rospective) to. determine prevalence at any point during childhood have yielded median prevalence rates of 15% for females and 6.5% for males. Stefanie Doyle Peters et al., Prevalence, in A SOURCEBOOK ON CHILD SEXUAL ABUSE 15, 20——21 (David Finkelhor ed. 1986). [The development of a profile with such high validity is ex- tremely unlikely given the great diversity of responses 1 among victims of child sexual abuse. See Jon R. Conte 8r Lucy Berliner, The Impact of Sexual Abuse of Children: Empirical Findings, in HANDBOOK OF SEXUAL ABUSE OF CHILDREN 72 (Lenore Walker ed. 1987). firm the likely assumption of the factfinder that a person who has just committed a crime will of- fend again. Rebutting these data by pointing to the false positive rate or by trying to distinguish the offender from those in the actuarial profile may well be futile in this situation.66 At the least, when the false positive rate is high (as is the case, 16 I. GENERAL CONSIDERATIONS ‘ §1,04 for instance, with actuarial prediction of danger— ousness), courts might again do well to consider prohibiting the use of such information unless the defendant uses it first. 1104fS‘h‘ould—Mental Health ‘ Professionals Be Considered Experts? As the preceding discussion illustrates and as we reiterate below, we believe that some controls on mental health testimony are necessary in circum- stances in which it is inherently misleading or prejudicial. Nonetheless, we retain our general preference for liberal use of behavioral science expertise. To explain this view, we come now to what may be the core problem in contemporary forensic mental health: Should mental health pro— fessionals be recognized as experts by the law and, if so, for what purposes? Before discussing the courts’ answer to this question, we will give our own. In doing so, we refer liberally to the Federal Rules of Evidence, the relevant parts of which are listed in Table 1.2. Because most states have adopted all or part of these rules, they will form the baseline for our analysis. \ (a) The Definition of Specialized Knowledge The first point to note is that, whereas laypersons are generally limited in their testimony to de— scriptions of direct observations (see Rule 701), experts may testify as to opinions, provided that the “specialized knowledge” of the witness will “assist” the trier of fact in determining a relevant issue (Rule 702). Rule 702’s insistence that the expert assist the factfinder is derived in part from the democratic premise that professional educa— tion in itself does not confer special status in the legal system. In principle, everyone is equal be- fore the bar of justice. It follows that occupational status should not infringe the societally designat— ed authority of the judge or jury to decide the case at hand.67 Experts should be able to go fur- ther than lay witnesses in offering opinions only if doing so would provide specialized information Table 1.2 Federal Rules of Evidence, Article 7: Opinions and Expert Testimony Rule 701. OPINION TESTIMONY BY LAY WITNESSES If the witness is not testifying as an expert, the wit— ness’rtestirnony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ tes- timony or the determination of a fact in issue. Rule 702. TESTIMONY BY EXPERTS If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or 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 opin- ion or otherwise. Rule 703. I BASES OF OPINION TESTIMONY BY EXPERTS The facts or data in the paru'cular case upon which an expert bases an opinion or inference may be those per- ceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by ex— perts in the particular field in forming opinions or in— ferences upon the subject, the facts or data need not be admissible in evidence. Rule 704. OPINION ON ULTIMATE ISSUE (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissi— ble is not objectionable because it embraces an ulti- mate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether ' the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. that will help the trier of fact in understanding the evidence as it is presented. In analyzing the import of Rule 702’s require— ment that opinion evidence be based on special— ized knowledge that can assist the factfinder, it should also be recognized that there are several §1.04 ' 1. AN UNEASY ALLIANCE l7 levels of opinion that might be rendered. For ex— ample, in considering whether a defendant meets the M’Naghten test of insanity [See § 8.02(b)], the following levels of‘inference might occur, all of which represent increments in opinion forma— tion: 1. Application of meaning (perception) to a be- havioral image (e. g. , “He was wringing his hands”). 2. Perception of general mental state (e.g., “He a peared anxious”). 3. “Formulation” of the perception of general mental state to fit into theoretical constructs or the research literature and/ or to synthesize observations (e.g., “His anxiety during the in- terview was consistent with a general obses— sion with pleasing others”). 4.. Diagnosis (e.g., “His behavior during the in- terview and his reported history are consis— tent with a generalized anxiety disorder”). 5. Relationship of formulation or diagnosis to legally relevant behavior (e. g, “At the time .of the offense, his anxiety was so overwhelming that he failed to consider the consequences of his behavior”). 6. Elements of the ultimate legal issue (e.g. , “Al— though he was too anxious at the time of the offense to reflect upon the consequences of his behavior, he knew the nature and consequences of his acts and knew that what he did was wrong”). 7. Ultimate legal issue (cg, “He was sane at the time of the offense”). In considering the question of which, if any, levels of inference mental health professionals should be permitted to reach in their testimony, on one point there is near—unanimity among scholarly commentators.68 Despite the fact that such opinions are commonly sought and, unfortu— nately, are commonly given, mental health prcfes— sionals ordinarily should refiminfiom giving opinions as to ultimate legal issues. As we have already seen, the constructs about which an opinion might be sought (e. g., voluntariness) are often inconsistent with the model 'of behavior on which the expert’s observations are based. Even when the constructs appear familiar, however, experts should avoid giving ultimate—issue opinions; questions as to criminal responsibility, “committability, and so 7 forth are not based on “specialized” knowledge ' but are legal and moral judgments outside the ex— pertise—ofimental—healmprofessionals_q.ua_mental health professionals. For example, the types of behavior that constitute a “mental disorder” as a matter of law may be substantially different from , the range of behaviors subsumed under that con— cept in the expert’s mind. Similarly, opinions as to dangerousness require the drawing of legal lines as to how high the probability of particular kinds of behavior must be to warrant state inter— vention; indeed, the definition of “dangerous” be- havior itself involves legal judgments. When ex- perts give such opinions, they usurp the role of the factfinder and may mislead the factfinder by suggesting that the opinions are based on special— ized knowledge specific to the profession. Note in this regard that although Rule 704—(a) allows experts to give opinions on ultimate is— sues, Rule 702 prohibits admission of any opinion not based on specialized knowledge, a prohibition which presumably can include ultimate—issue opinions. Indeed, Rule 704(b) (an amendment to the original Rule 704 which was inspired by john Hinckley’s acquittal on insanity grounds) makes this point concretely with respect to mental state testimony in criminal cases. The position we take is that the same evidentiary prohibitionshould apply to all types of cases. In any event, even if a court permits such an opinion to be admitted as a matter of law, it should not be offered as a matter of professional ethics because of the explicit or implicit misrep- resentation of the limits of expertise involved when a clinician acting as an expert Witness gives a legal opinion in the guise of mental health knowl- edge.69 The mental health professional should ask himself or herself, “Would the requested opinion be the product of expertise as a clinician, or rather stem from the moral sensibility or com- mon sense of a citizen?” If the latter, the opinion should not be offered; if it is demanded, it should be described as a legal, moral, or commonsense judgment, not a psychological or medical one. Under this reasoning, there are virtually no circumstances Where a clinician should offer an opinion at level 7 in the hierarchy set out earlier. 7 Testifying that a person is “sane,’ “dangerous,” “competent,” “parentally fit,” or “disabled” (for . GENERAL CONSIDERATIONS §I.O4— 18 '1 workers’ compensation or social security purpos- es) trenches on both legal and ethical domains. Testimony at level 6 should also generally be avoided because the clinician will be using legally defined language. It is true that a rigid prohibition on testimony at this level may sometimes be an artificial constraint. Talk about whether criminal defendants “knew” their act was““wr'ong” (both—as pects of the M ’Naghten test), even if banned, can easily be replaced with testimony about whether defendants were “aware” they were breaking the law (consider, in this regard, the testimony in Case Study 1.1). Similarly, it is often difficult to discuss competency to stand trial without directly discussing the defendant’s ability to assist coun- sel—one of the elements of the competency stan— dard [see Chapter 6]. However, the question of how much “knowledge” or “awareness” a defendant must have to be sane, or the extent to which defen- dants must be able to “assist” their attorney to be competent, is a purely legal issue. Consequently, the clinician should at the least avoid parroting the language of the legal test and should be sensi— tive to using unexplained synonyms as well. The question is harder with respect to opin- ions based on intermediate levels of inference (2 though 5 in the list above, as well as statements at level 6 that avoid legal language). The most artic— ulate proponent of exclusion is Morse, who has argued that only two types of testimony by men— . tal health professionals (when testifying in that ca- pacity) should be permitted.70 First, Morse would permit presentation of “hard actuarial data,” when relevant and available. Second, be- cause mental health professionals usually have .much more experience with “crazy” persons than do laypersons, and thus are likely to be better ob— servers of the kinds of behavior that may be legal— ly relevant, he would allow them to present their observations ofbehavior. For example, Morse be— lieves that mental health professionals are likely to be more skilled than laypersons in asking the right questions to elicit information about hallu- cinations, suicidal plans, and so forth, and should thus be able to describe the answers to those questions. On the other hand, Morse would not allow opinions as to thewmeaning of the behavior; he . '» would bar formulations and diagnoses as well as conclusions on ultimate issues. Therefore, the role of mental health professionals would be that of specially trained fact witnesses. Morse has summarized his objections to most expert testi- mony by mental health professionals on the fol- lowing grounds: [F]irst, professionals have considerably less to ~ contribute than is commonly supposed; second, ' for legal purposes, lay persons are quite comp‘e— tent to make judgments concerning mental dis— order; third, all mental health law cases involve primarin moral and social issues and decisions, not scientific ones; fourth, overreliance on ex— perts promotes the mistaken and responsibilit '— abdicating view that these hard moral questions (i.e. , whether and in what way to treat mentally ill persons differently) are scientific ones; and fifth, professionals should recognize this differ— ence and refrain from drawing social and moral conclusions about which they are not expert.71 We have already indicated our agreement with Morse as to his third, fourth, and fifth points. We are also in agreement, for the most part, with his second point: Whether a person appears suffi— ciently disabled to warrant special legal treatment is an intuitive social and moral judgment. Diagno— sis, for example, is largely irrelevant to mental health law questions.72 However, we part company with Morse with respect to his first point. We recognize the well— known,73 although at times exaggerated,” va— garies of mental health assessment and predic— tion. The literature with respect to specific foren— sic questions is reviewed in more detail through— out this volume. But although we share Morse’s uneasiness about the state of art in mental health assessment and his preference for testimony based on valid, quantified research, we would still permit mental health professionals to offer other opinions short of the ultimate issue. In our view, Morse underestimates the degree to which mental health professionals can assist the factfinder in making legal judgments, provided that professionals both know and acknowledge the limits of their expertise. As Bonnie and Slobogin have pointed out,75 the laW’s approach to the ad- missibility of expert opinions is incremental: The main consideration, as formulated in Rule 702 of the Federal_,_Rules of Evidence, is whether the opinion will assist the factfinder (not whether it is or should be dispositive). Stated somewhat more 1.04 1.. AN LINEASY ALLIANCE . 19 § . precisely, the question is whether the probative value—of the evidence outvveighsdtslendency t9 ‘ be inefficient, misleading, or prejudicial.76 Rather than completely exclude opinions that offer mar— ginal assistance, the modern trend in evidence law, as Morse acknowledges,77 is to admit the tes- timony and let the factfinder assign the weight to be given it. Although Morse argues that the mental health professions’ scientific basis is so limited as to war- rant a special exception to this general rule,78 we believe there are two reasons for refusing to sin— gle out mental health professionals in this way. First, by way of precedent, expert opinion is commonly admitted in situations in which the opinions are no less speculative and probably more prejudicial than those commonly offered by mental health professionals. For. example, the opinions of experts employed by forensic science laboratories, which are rarely challenged, are based on mistaken identifications as much as 70% of the time.79 Moreover, psychiatric diagnosis is as reliable as numerous other areas of health sci— ence diagnosis.$0 Second, even if speculative opinions from oth- er disciplines have been admitted erroneously, we still would contend that justice is often served by the liberal admission of mental health profession- als’ opinions. Whatever might be the case with other disciplines, mental health professionals do have access to a body of specialized knowledge (i.e., knowledge commonly unshared by the lay public) that may assist legal factfmders in making informed judgments. Melton, Weithorn, and Slobogin administered a test of knowledge about clinical syndromes commonly observed in crimi- nal and juvenile forensic practice and the research relevant to those syndromes to samples of mental health professionals and trial judges.“ Mental health professionals’ performance was generally superior to that of judges; when the latter were compared to mental health professionals special- ized in forensic practice, the differences were es- pecially marked. Even when the research basis of opinions is weak, there may be instances in which the under— lying knowledge is sufficiently great to warrant the admission of the opinions. For example, in contrast to Morse, we favor admission of psycho— logical formulations (levels 3 and 4- in the typolo— gy of inference set out earlier)? in many legal con- texts, although we acknowledge, as Morse per- " suasively shows, that the scientific basis of psy— chodynamic formulations in particular is often in— adequate for their verification. Such opinions are clearly not based on precise “science.” HOWever, neither are they folklore nor homespun wisdom. The argument here is analogous to Morse’s ap- proval of mental health professionals as trained observers of “crazy” behavior. Mental health pro— fessionals are trained and experienced in generat— ing explanations of abnormal behavior. Even if these formulations are at times mere “stories,”82 their narration may provide plausible explana- tions of a defendant’s behavior that would other- wise be unavailable to the trier of fact. If these possible explanations are delivered with appro— priate caution, they may well assist the factfinder in reaching a judgment, despite the fact they have not or cannot be “tested?”83 (b) Limitations on the Use qupeciaIized Knowledge Admittedly, the conclusions of mental health pro— fessionals may provide more assistance in some contexts than in others. They seem particularly germane when the clinical testimony is offered by an individual to rebut allegations made by the state designed to deprive the individual of liberty (as in civil commitment proceedings and criminal trials and sentencing hearings). In such situations, it may often be unjust to deprive a defendant of l the option of bringing appropriately framed evi— dence before the factfinder. More generally, we think behavioral science information is most like- ly to “assist” factfinders when it challenges their preconceptions (eg. , the assumption that a defen— dant rationally intends the consequences of his ac- tions), a point we develop in other parts of this volume [see, e.g., § 8103(b)]. However, similar to our comments in connec- tion with probabilistic data, we are less sanguine about how helpful professional testimony is when the defense has decided not to use such testimony. Under such circumstances, the possibility that the factfinder will be unduly influenced by the state's clinician is great, given that the natural assump- tion is already that any individual who is being §1.o4 20 I. GENERAL CONSIDERATIONS ing it, or the type of proceeding involved. Al— though courts in recent times have been some- what more active in monitoring such testimony, they have not done so in the nuanced way we rec— ommend. Rather, while continuing to allow ulti— mate issue, pronouncements about traditional mental disorders, psychodynamic causes and dan- gerousnes's, they have often barred_all‘evidence volves rebuttal experts, cross-examination, and that speaks in terms of syndromes (e.g., battered ndrorne) and novel—sounding diagnoses other trappings of the trut —testing process, some spouse sy types of proceedings—civil commitment and (e.g., pathological gambling), even when present- competency to proceed hearings to name but ed by the defense. . ble star-chambers, where a Until 1993, the dominant analytical vehicle for two—often resem lone expert’s word is dispositive. In such situa— evaluating clinical testimony in federal court and tions, clinicians must be particularly careful, at many state courts was the Bye rule, so—called be— the least, to explain their inferences and may even cause it originated in the 1923 case of Frye V. Unit— ed States.87 That decision, involving an attempt to want to abide by Morse’s injunction to avoid straying beyond level-1 type testimony. 84 introduce the results of a polygraph test, held that In summary, although the range of opinions the admissibility of scientific evidence should be — with which mental health professionals provide conditioned on its being “sufficiently established ’ to have gained general acceptance in the particu- lar field to which it belongs.”88 As noted, tradi— tional clinical testimony has generally been im— mune from a Frye challenge, with some courts simply claiming that the behavioral sciences should not be governed by rules relating to the “physical sciences,”89 and others apparently as— suming that most mental health professionals would agree it is based on “generally accepted” pact this testimony can have when its use is ini- theory.90 At the same time, more novel clinical tiated by the state or will be untested by the testimony has frequently been prohibited under adversarial process, Frye, either because at the time of the decision the sionals, as a matter of ethics, should always assess diagnosis at issue had not yet appeared in the Di— their ability and willingness to indicate the valid— agnostic and Statistical Manual cf Mental Disorders ity or certainty of their opinions and to explain (DSM),91 or because, even if it had, the relevant them.85 field was too small or the relevant theory was too untested?2 Critics of the Fiye rule regard it as unduly con- bert86 servative. By requiring general acceptance, the ‘ rule results in exclusion of evidence that is novel but still reliable (valid, in scientific terms). At the same time, the Frye test seems to permit admis— sion of unreliable evidence whenever it achieves stood and critiqued. The courts follow virtually tance, even in a field with little or none of our suggested prescriptions, much less no scientific credibility (e.g., clinical predictions those proposed by Morse, Indeed, traditionally, of dangerousness). Nonetheless, many courts re- tained it because of the time and expertise re- een left alone; whether framed in ultimate terms or not, it has quired in case—by-case determination of the scien- been routinely admitted, without any considera— tific merit of experts’ opinions. Under Frye, the tion of its prejudicial impact, the party introduc- court need merely hear evidence as to whether a tried must be in court for a reason. The probative value of the evidence, which is low, may easily be outweighed by the possibility of prejudice. We are also leery of reports or testimony us— ing the upper levels of inference if they will not be subjected to the adversarial process. Although the typical insanity tuial, capital sentencing pro- ceeding, or parental fitness hearing usually in- should be left open to professional opinions that might assist the trier of fact, especially when they are likely to challenge factfinders’ intuitive as- sumptions about human behavior and motivation. At the same time, such subultimate opinion tes- timony should be used Cautiously. Lawyers and judges should be sensitive to the prejudicial im- (c) Expertise under Frye and Dan With the foregoing in mind, the law’s current ap- proach to admission of testimony from mental health professionals can be more easily under— general accep testimony from clinicians has b particular technique is “generally accepted,” 7 rather than carefully balance its relevance against is prejudicial impact.93 ' ' ' In 1993, however, ‘die analytical landscape seemed to change with the United States Supreme Court’s decision in Daubert v. Martel] Dow Pharmaceuticals. 94 The Court’s unanimous v holding rested on a straightforward legal analysis: Congress adopted the Federal Rules of Evidence more than half a century after the DC. Circuit’s decision in Frye, and it did not intend to incorpo— rate the “austere” Frye standard into the new Rules “liberal” admission of evidence.95 The Court’s opinion added extensive dicta,96 joined by seven of the nine justices, about factors to be considered in weighing scientific evidence. By im- _ promoting plication, that discussion, written by Justice Blackmun, provides guidance to experts and at— torneys preparing the presentation of opinions, Probably the mostirnportant point made in the dicta is that bright-line indicia of reliability (e.g., whether general acceptance has been ob— tained or even whether peer review has occurred) are inconsistent with the balancing test implicit in the requirement for specialized knowledge that will assist the trier of fact. Thus, Frye’s establish- ment of a “threshold” standard of scienfific relia— bility or expert credibility is misguided. The Rules of Evidence, justice Blackmun wrote, are “designed not for cosmic understanding but for the particularized resolution of legal disputes .”97 As to how the admissibility of scientific evi- dence should now be gauged, the Daubert dicta made clear that the opinion must be based on “an inference or assertion . . . derived by the scientif— ic method”; that is, the court should decide “Whether the reasoning or methodology underly— ing the testimony is scientifically valid and . . . whether that reasoning or methodology properly can be applied to the facts in issue.”98 Although expressly noting that its list of factors was not ex— haustive or dispositive, the Court offered some criteria to use in forming such an impression: These included the “testability of the theoretical basis for the opinion and the error rate associated with the methods used, as well as Frye—like factors such as approval by peer reviewers and the level of acceptance of those methods by experts in the field. Blackmun emphasized that Rule 702 is in— tended to guide a “flexible” inquiry, with the AN LINEASY ALLIANCE .i‘overarching” focus to been “the‘scienti'fi'c validi- *1 ty—and thus the evidentiary relevance and relia- bilitygof the principles that underlie a proposed submission.” He further clarified that “the focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.”99 Thus, new ideas not yet generally ac— cepted in the scientific community are not barred from admission into legal decisionmaking. Although these latter comments sound more “liberal” than Frye, it remains to be seen whether Daubert significantly changes the admissibility in- quiry, especially given its retention of peer review one factor to consider. Indeed, the decision’s emphasis on scientific validity may well have a “conservative” effect. With respect to the specific issues considered in this book, Daubert raises two major questions. First, will state courts follow it? Second, is the admissibility of clinical opinion governed by it? , Although most states‘ have adopted the Federal Rules of Evidence, sometimes even to the point as of using the same numbering in their code, they often vary in adoption or interpretation of partic— ular rules. In any event, they are not bound to adopt the prevailing interpretau'on in the federal courts, although that understanding is often influ- ential. In approximately the first two years after the Daubert ruling by the Supreme Court, appel- late courts in 32 states cited it in their decisions. Eleven adopted it,‘00 and five rejected it,101 al- though one of the five explicitly left the door open to adopting Daubert at a later point. '02 The remainder cited the case without ruling on its ap— plicability because the issue was not presented by the parties or its resolution was unnecessary to the case at bar. Some of the states adopting the Daubert approach had already rejected Frye, whereas the California and Nebraska supreme courts explicitly stated a preference for the Frye test.103 Therefore, readers should be careful to determine Daubert’s application in their own state. Nonetheless, it appears that the trend is to reject the general acceptance test in state as well as federal law and to require, at least in theory, a more searching judicial inquiry to determine the scientific validity of expert opinions before they are admitted. With respect to the second question, Daubert’s dicta do not make clear whether the guidance that 1. GENERAL CONSIDERATIONS §1.o4 22 they provide about determination of “scientific” knowledge also apply to “technical or other spe— cialized knowledge” referred to in Rule 702 . 104' If it does not, and clinical opinion is considered technical or specialized knowledge rather than “scientific,” any admissibility inquiry that takes 7 place may well be relatively cursory; examination of the empirical underpinnings of suc—h opinion may occur only if such underpinnings exist.105 'If, on the other hand, opinion testimony from men— tal health professionals is seen as “scientific” in na- ture or, to the same effect, Daubert’s regulation of scientific evidence is applied to all types of exper- tise, the question becomes whether its basis is sci- entifically “valid 3’1 06 Certainly i11\_some cases it is. The type of prob— abilistic data discussed earlier, as well as informa- tion about some types of clinical diagnoses, has often resulted from hypothesis testing in the tra— ditional scientific manner. But much clinical testi- mony would not meet this threshold. Indeed, as Bonnie and Slobogin have pointed out, the central etiological theories and conceptual categories of the clinical behavioral disciplines have not been scientifically validated. . . . At best, opinions about psychological processes—- beyond merely descriptive observations—are clinical probability judgments rooted in theo— retical constructs that are more or less widely shared among mental health professionals.107 In our view, transformation of Daubert into a new bright—line rule barring such clinical testimo- ny as “unscientific” would be unwise. Such a stance would eliminate ways of thinking about human be— havior that may be helpful to the trier of fact and that are not merely common sense. Consider, for instance, these statements taken from the sample reports set out in Chapter 19 of this book: One characteristic stress response is for individ— uals to “relive” through their own thoughts and fantasies the original stressful episodes in an ap- parent effort to bring about more successful (i.e., psychologically acceptable) solutions. (p. 561) It is probable that the death of his father con- tributes to his . . . loss of self-esteem. (p. 584-) Tom’s impulse control may often be tenuous, at least partially because of his poor verbal skills ’ and'resulting inability to label, feelings. (p. 592) Under a strict Daubert approach none of these statements could be made unless the expert could point to research articles supporting their under- lying propositions, for example, that people “re— live” their original stress episodes, that this reliv— ing can be an attempt to heal, that loss of a father can contribute to loss of self—esteem, and that poor verbal skills can lead to poor impulse con— trol. The second and third propositions cannot easily be subjected to scientific testing; the other two can be (and, to some extent, have been), but not necessarily with any definitive results. If Daubert were to lead to exclusion of any or all of these statements, it would be at least as arbitrary as Frye or its corollary requirement (as applied by the lower courts in Daubert) that scientific opin— ions must be peer reviewed. Such a result is con- trary to the spirit of Rule 702 and its focus on in— cremental validity of decision making by the trier of fact, as many have pointed out. ‘08 Unfortunately, some courts have not followed this admonition. Rather, they have relied on or re- ferred to Daubert in deciding that clinical testimo— ny should not be permitted. For instance, in State v. Cressey,109 the New Hampshire Supreme Court cited Daubert, apparently with approval, in con- , ducting a searching analysis of whether psycho— logical evaluations of sexually abused children were properly admitted in a triad of cases decided on the same day. In determining that they were not, the court’s decision noted that although it did not “seek to disparage the work being done in psychology and the behavioral sciences . . . the psychological evaluation of a child suspected of being sexually abused is, at best, an inexact sci- ence” that “does not present the verifiable results and logical conclusions that work to ensure the reliability required in the solemn matter of a criminal trial.” It is likely that, using reasoning like that in Cressey, courts will increasingly de— mand proof that testimony from mental health professionals have some scientific basis.110 Of course, as stated previously, we are not ad— verse to this scrutiny to the extent it requires Clinicians to produce the available evidence sup- porting their position (an approach we advocate . . throu hout this book ' for instance basin asser— g i i g tions on one’s “experience,” without more (see Case Study 1,1), may be insufficient. But whatev- Wer ’of'the >specific result in Cressey,“1 ...,,_,A.._...m_.i ...- ...r.-._v...w...;.;é..,_vmu. . 24,, w r":1[—-:":"u" ;;-.;= )va « .05 1. AN UNEASY ALLIANCE 23 gL/_’________—————————————-—+— we think its requirement that clinical testimony be “verifiable” is too demanding. A rigid rule of exel-usionior theories about human behavior that have not been subjected to the “scientific method”——including those which for ethical or practical reasons may never be so testedHZ—is overbroad. It is also too narrow. Merely because some— thing is “verifiable” does not mean that testimony based on it will be helpful to the jury. We agree with Cressey, and with O’Connor, Sales, and Shu- man,113 that juror skepticism and cross—examina— tion cannot always be relied on to ferret out unre- liable clinical testimony. But we are even less sure that jurors will be skeptical of research-based tes— timony or that cross-examination can detect when it is unreliable.114 The point is that there is good and had clinical testimony, good and bad re- search, and good and bad cross-examination. Rather than relying solely on verifiability as the gauge of admissibility, the better answer, we be— lieve, is to take the nuanced approach to admissi- bility we developed earlier and, at the same time, try to improve the performance of both mental health professionals and lawyers, a task to which this book is devoted. 1.05. Which Professionals Should Be Considered Experts? Assuming that mental health professionals’ opin— ions should be admissible in at least some in— stances, the question arises as to which mental health professionals should be considered experts by the courts. Traditionally, this question has been answered by examining educational credentials, particularly with respect to discipline. In general, physicians have been considered experts in men— talhealth matters, often without regard to psy— chiatric training. In recent years, courtsnhave also admitted testimony by clinical psychologists, al— though some jurisdictions require psychologists to meet special experiential or training require- ments before they can be acknowledged as ex- perts, and many do not permit civil commitment orders to be filed by psychologists. Psychiatric so- cial workers are often considered experts in juve- nile and domestic relations imatters and some— times at sentencing in criminal cases but are gen- erally,th permitted to offer opinions about a de- fendant’s competency to stand trial or rmental state at the time of the offense. 1T5 These general guidelines have evolved more from the internecine conflicts among the mental health guilds and the law’s comfort with a med— ' ical model than from any systematic attempt to identify which mental health professionals possess sufficient specialized knowledge to assist the trier of fact on particular forensic issues. A survey of psychiatrists and psychologists indicated the depth of interdisciplinary antipathy.116 Members of both professions were asked to evaluate their relative competence in .11 tasks performed by mental health professionals, including assess— ment, treatment, program administration, and expert testimony. Psychiatrists viewed them- selves as more competent on eight of the tasks (including testimony), equally competent on two of the tasks, and less competent only with respect to administration of psychological tests. In con— trast, psychologists perceived themselves as supe— rior to psychiatrists on nine of the tasks, equal with respect to testimony, and inferior only With respect to the management of medication. In the face of such marked differences in perception of ' expertise, any comparison of disciplinary differ— ences in knowledge and skills is likely to be fraught with controversy. Although reliance on objective indicators of expertise (e.g., form of training) clearly is the easiest method of deter— mining qualifications as an expert, it is not the best. ' Our own preference is for establishment of qualifications that are both broader and narrower ‘ than those commonly used; these should focus not only on educational attainments but also on experience in the relevant area and on the evalua- tion procedures used. This preference is based on an assumption that the law should use a functional approach to evaluation of qualifications, as in fact is suggested in Rule 702 (which uses' a criterion of probable assistance to the trier of fact). The prevailing standard as to qualifications should be broader in that the available research gives no ba— sis in most contexts for the historic preference for medically trained experts. The level of knowl— , edge about forensic practice is not predictable by discipline, either among general clinicians or among clinicians with special forensic training.117 As we point out in Chapter 6, for example, there is no basis for excluding social workers from com— petency evaluations; indeed, trained laypersons reach conclusions similar to those of mental health professionals. . I ' On the other hand, the standard as to qualifica- ‘iflons—should—be—narroWer,’ in that training as a mental health professional by itself is insufficient to guarantee a specialized knowledge of forensic mental health. For example, to the extent that there 'are - observed disciplinary differences , they suggest some bias against medically trained ex- perts in many types of forensic assessments. Pe— trella and Poythress118 found that psychologists and social workers tended to do more thorough forensic evaluations and more comprehensive and more relevant forensic reports than their psychi— atric colleagues.”9 There may be some specific topics on which medically trained clinicians are more likely to be expert, but even on these topics there is not likely to be exclusive expertise. For example, psychiatrists by training are more likely than other mental health professionals to have specialized knowledge about the effects of psy- chotropic medication; however, some psycholo- gists specialized in psychopharmacology may be more expert on such‘matters than the average psychiatrist. Conversely, although psychologists are more likely to be knowledgeable about re- search methods, some psychiatrists active in re- search are likely to be more expert on research design than the average psychologist.120 In short, the various mental health professions should be perceived as equally qualified as experts with respect to general training in legally relevant assessment, but attention should be given to the specific spheres of specialized knowledge that the expert may offer. For example, clinicians without detailed knowledge of the available research on predictions of violent behavior should not be ren- dering opinions as to dangerousness. Mental health professionals should not perform evalua— tions of competency to stand trial without knowl— edge of the standard. Even more generally, clini— cians without sensitivity to the special ethical and legal problems raised by forensic evaluation itself [see Chapter 4] should avoid participating in forensic work. The knowledge level and evalua— I. GENERAL CONSIDERATIONS §1.06 24 tion procedures appropriate for a given type of testimony should become apparent as one exam— ines the relevant portions of this book. 1.06. Conclusion In titlingthis*chapteri‘an-une asy—al-l-ianceib etween— the law and the mental health professions, we have called attention both to the conflicts in per: spective—some of them inherent——between lawyers and clinicians and to the points of al- liance. Readers will recognize this ambivalent theme throughout this volume. On the one hand, there are paradigmatic disciplinary differences in conceptualizing and finding facts, and the state of the art in the mental health professions renders a level of certainty far lower than the law would like in many instances. On the other hand, there is a corpus of knowledge in the behavioral sci— ences that, if available to legal decisionmakers, would result in more informed judgments on many issues. Our primary admonition to mental health professionals and to lawyers who would consult them is that both aspects of this theme should be kept in mind. Mental health profession— als Who exaggerate the state of knowledge (either their own as individuals or that of the field as a Whole), or who ignore problems in translating the behavioral sciences into legal findings, do the law no service. At the same time, lawyers who ignore the behavioral sciences or, conversely, who swal— low whole the conclusions of mental health pro— fessionals fail to exercise proper diligence in gen— erating the facts necessary for the pursuit of jus— tice. We hope that readers from both perspectives will find this volume useful in developing an in? terdisciplinary alliance wherever doing so would improve the quality of legal decisionmaking. Less globally, this volume is intended to demystify the arcane aspects both of the courts and of the men- tal health system. ) Bibliography Hal R. Arkes, Principles in judgment/ Decision Making Re- . search Pertinent to Legal Proceedings, 7 BEHAVIORAL SCIENCES 8LTl-IE LAW 4-29 (1989). AVID BARNES, STATISTICS AS PROOF: FUNDAMENTALS OF QUANTITATIVE EVIDENCE (1983). (An overview of ‘ statistics for lawyers.) ' ‘ Ed‘jTBo—nfii'e—Sz‘Christopher-SloboginTThe—Role-of Mental Health Professionals in the Criminal Process: The Case for Informed Speculation, 66 VIRGINIA LAW RE- VIEW 427 (1980). , (j a Factual jurisprudence, 4- LAW 8: HUMAN BEHAVIOR 147 (1 9 8 0). Craig Haney, Psychology and Legal Change: The Impact of a Decade, 17 LAW 8: HUMAN BEHAVIOR 371 (1993). LAW AND PSYCHOLOGYzTI—IE BROADENING OF THE DISCI— PLINE (James R. P. Ogloff ed. 1992). Gary B. Melton, Expert Opinions: "Not for Cosmic Under- standing,”in PSYCHOLOGY IN LITIGATION AND LEGIS- LATION 55 (Bruce D. Sales 8: Gary Van den Bos eds. 1994). JOHN MONAHAN 8t LAURENS WALKER, SOCIAL SCIENCE IN LAW: CASES, MATERIALS AND PROBLEMS (3d ed. 1994) {Craig Haney, Psychology and Legal Change: On the Limits '7 1. AN UNEASY ALLIANCE 25 John Monalian 8c Laurens Walker, Social Science Re— search in Law: A New Paradigm, 4-3 AMERICAN PSY- CHOLOGIST 465 (1988). , , MIeH-AEL MOORE, LAW AND BSICHIAIRILREIHINKI G THE RELATIONSHIP (1984-). Stephen Morse, Crazy Behavior, Morals, and Science: An Analysis of Mental Health Law, 51 SOUTHERN CALI— FORNIA LAW REVIEW 527 (1978). Stephen Morse, Failed Explanations and Criminal Re- sponsibility: Experts and the Unconscious, 68 VIRGINIA LAW REVIEW 971 (1982). Michael Saks 8t Robert Kidd, Human Information Pro- cessing and Adjudication: Trial by Heuristics, 15 LAW 8: SOCIETY REVIEW 123 (1980—81). Alan Tomkins & Joe S. Cecil, Treating Social Science Like Law: An Assessment ngonahan and Walker’s Social Authority Proposal, 2 SHEPARD’S EXPERT 8c SCIENTIFIC EVIDENCE QUARTERLY 343 (1994). Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARVARD LAW REVIEW 1329(1971) ...
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