Working on the Borderline Between Law and Mental Health

Working on the Borderline Between Law and Mental Health
By Eric Goldwaser
Especial para Futuros Abogados Latinoamericanos. Derechos reservados (Ley 11.723)

“An expert witness should distinguish between what he knows as an expert and what he may believe as a layman. His role is to contribute the insight of a specialty. He is not an advocate; that is the role of counsel, nor is he the ultimate trier of fact. That is the role of the jury, judge, or specialty review board. Indeed, the trier of fact may be misled if the expert goes beyond what he can contribute as an expert…”

Judges have grown tired of “hired guns,” whose opinions are based on weak standards and whose reports state the obvious. A forensic expert should be able to limit the testimony to both, disputed aspects of the case, and the particular area of expertise he possesses. Judges report their being attentive to the expert’s presentation of facts and brief explanations of key issues because they favor an educational approach.

When attorneys[1], judges, and jurors need to understand the past or present mental state of an individual, as well as projecting that mental functioning into the future, -depending on the case and the particular aspect that needs to be decided-, a forensic mental health professional (MHP) is called upon to describe such state of mind. The forensic MHP also is hired to provide the opinion that helps the law continue in the search for a fair legal decision of a dispute.

Despite popular thought, the history of forensic[2] mental health is rich and extensive. It is packed with legal cases in which human behavior and the mental state that fueled it became under legal scrutiny. Cases discussed and settled by the United Stated Supreme Court and other highest State courts came to be known as ‘Landmark’, setting the standard on how to consider the psychological perspective in the court of law.

Law became used to recognize the fact that not all human behavior is the product of ‘free will.’ A knowledgeable MHP is now called to shed light on the behavioral outcome of abnormal mental processes. He/she presents such findings in the form of opinions based on the application of scientific knowledge contained in a forensic psychiatric examination[3]. The IME[4] also comprises the evaluation[5] of the data collected during the examination.

The first recorded example of forensic testimony[6] in a criminal trial[7] took place at the trial of Earl Ferrers in 1760, in which Dr. John Monro, of Bethlem, England, testified[8] by teaching the court about ‘lunacy[9].’ Dr. Monro educated the jury by using the concept of ‘irresistible impulse,’ referring to the inability to curb one’s urges to act. Despite his explanations, Ferrers was found guilty by the House of Lords. This trial marked the beginning of experts[10] acting as educators in the courtroom (as an expert witness).

For this courtroom education to occur, a set of rules was created to give guidelines allowing the ‘teachings’ of a MHP to be accepted as evidence in the courtroom. This collection of rules was titled “The Federal Rules of Evidence[11].” Among them; Rule 701 describes how a treating clinician can testify only as ‘lay or fact witness.’ A lay witness (or ‘fact witness’) is a witness who testifies on the facts that he or she observed, while providing mental health care, without going beyond that description. He or she will report only on what transpired during the treatment situation, giving no expert opinion on the circumstances (legal implication) of the specific individual.

The MHP performing an IME needs to avail himself of documents (psychological, medical, police and legal) that confirm or refute the examinee’s narrative, as well as question data that the examinee[12] did not reveal to the MHP. It is vital to clearly differentiate between the forensic and the treating roles and responsibilities of the expert’s practice.

Forensic MHP are asked to help ascertain all sorts of psychological circumstances, including whether mental illness and/or disability was, is, or will be present.

An extensive knowledge of mental health is but one of the many important ingredients in being a forensic expert witness. Disconnected from other factors, the mere knowledge of mental health will play a limited role in the establishment of a legal decision. The expert should know the distinction between objective (clinical signs) and subjective (reported symptoms), and the weight each has in court. This expert, as well, should know how to apply this information to specific clinical matters under legal scrutiny. It is essential to have enough clinical experience and up-to-date knowledge of the field of practice so as to feel at ease using and describing the current standards of care in any particular case.

It is important to be familiar with the “Federal Rules of Evidence,” Article VII: Opinions and Expert Testimony (701-706, Appendix) which regulates the expert’s participation in the fact finding process[13].

The limits imposed by Rule 701 refer to the area of attention and scope of the clinician’s practice, which falls outside the legal issues playing a role in his patient’s life. The confidentiality of the treatment process imposes restrictions to gain access to other (collateral) sources of information[14], as well as impedes divulging data that was obtained in confidence during treatment. Similarly, the therapist’s needs to cultivate and adhere to his main interest, namely, establishing and maintaining a trusting (therapeutic) relationship with his patient. The patient may be hesitant at first to confide in and share information with the therapist, beyond the reporting of symptoms. The therapist’s job is to craft the setting that fosters the development of the psychotherapeutic process. This process may eventually bring about the fertile ground for mental health to occur. The clinician attributes the patient’s first reluctance to relate and be truthful, to the inner workings of that patient’s mind.

To be prepared to convey scientific knowledge in the expert opinion, one should know the boundaries imposed by each professional role: the treating and the forensic mental health professional[15].

Expert witnesses draw from many indirect sources for information to reach a conclusion about a specific case. Only after thorough and extensive study of the case in point should a professional offer his or her expert testimony in court. The law expects the professional to base his or her testimony on the day-to-day clinical practice in order to arrive at his or her conclusion. For example, the focus of the practice for a marriage and family therapist is typically on relationship problems between married persons and among parents and children, not the diagnosis of mental illness.

This presents a problem in that a professional may provide in court an “expert” testimony that involves more advocacy and personal bias than knowledge or expertise based on science. It should not be inferred that clinical MHP are typically not as rigorous as forensic MHP in their methods when they work. Both, the clinical and forensic expert, have two different goals, while performing their professional tasks.

To treat somebody, clinicians are involved, in their advocating role, in a doctor/therapist-patient relationship offering support, advice, confrontation, clarification, interpretation, and/or medication management within an emotionally tolerant setting. This clinician, if testifying in court, can appear unfocused when trying to put forth his opinion as an expert one, because his or her work with the patient is not meant to withstand the diligence of legal scrutiny.

As therapists, MHPs are advocates for their patients. Clinicians do not use collateral sources of information other than to access their patients’ current medical and laboratory records, and if the symptoms suggest for it, their past recorded psychiatric information. According to the patient’s presenting symptomatology, clinicians routinely have limited use of collateral sources of information. Legal documents are not reviewed, and accessibility to patient’s medical and psychological records from other doctors usually reach the therapist’s office after the treatment is under way. The primary aim of a clinician is to relate, treat, alleviate, and cure the suffering patient. A forensic MHP cares, above all, about clarifying the mental state of the examinee concerning his or her involvement in a legal proceeding.

The main difference between the job of a clinical MHP and that of a forensic MHP is that the clinical MHP is limited to the treatment room while the forensic MHP utilizes that same treatment room exclusively as an examination room, and then expands his practice into the courtroom.

The clinical (treating) MHP relies heavily on the patient’s reported symptoms [16](in contrast to such found signs[17]) – what the patient feels, or claims to feel. As the patient’s helper, the clinician accepts such descriptions as valid and present, and proceeds with the treatment process. This process consists of learning more about the condition(s) that bring(s) the patient to the office, diagnosing the psychiatric disorder, and then eliminating those symptoms and perhaps even their cause. The clinician[18], the mental health professional, is a believer of his or her patient’s clinical descriptions, and of the reported intention of the patient to get well, or, at least, better. The clinician has a goal from the beginning to diagnose and treat the patient’s mental illness. In an effort to reach this goal there is a pro-patient stance and, for the patient’s welfare, the confidentiality rule is adhered to. The doctor/patient relationship in a forensic setting is significantly altered.

The person in a forensic setting is referred to as ‘examinee’ rather than ‘patient’ because he or she is not receiving treatment. What happens is that the expert is typically not allotted a large amount of time to reach a scientific opinion about the patient’s mental health. This contrasts greatly to the procedure of a clinician, who discovers new information about his or her patient practically every visit over long periods of time. With the short amount of time presented to the forensic MHP, the study of direct (the individual himself) information ought not to be the only substantial source in forming a scientific opinion; scrupulous review of indirect sources of information, when available, is not only strongly suggested, but required in order to draw a probable scientific opinion in the amount of time taken.

Forensic MHP’s are asked to help ascertain all sorts of psychological circumstances, including the presence of a mental illness. Performing clinical work, mental health practitioners must adhere to the ethical principles for that practice (e.g. non-maleficence, beneficence, confidentiality), while committed to follow the legal requirements, e.g. as ‘mandated reporters.’ Clinicians do not ordinarily pay attention to state statutes[19], legal criteria, burdens of proof, rules of evidence, and the like. These are aspects pertaining to the forensic sub-specialty, which adds to the vast knowledge of mental health, the consideration of the legal prong, for the conclusions to be improper to use and, in often cases, even ruled void.

It becomes clear, the difference in roles between a forensic expert, and a treating clinician. The latter needs, and ordinarily has time to establish, a doctor/patient relationship; he also has time to treat the patient. The forensic expert knows it is not his place to impart treatment; moreover, it is unacceptable for him to establish such a bond. The forensic expert’s role is only to “get in, and to get out,” and determine, for example, if a mental disorder or defect plays a role in that particular legal proceeding. If the opinion of the forensic MHP is that the mental state of the examinee ought to be taken into account, another job for the expert may be to opine on its cause. In the forensic role, the neutrality and objectivity of the MHP are essential for him or her to be an acceptable link in the fact finding process. His neutral stance is expected to exist in the attitude and relationship with the examinee. He is only required to advocate for his or her opinion within the facts considered.

On the other hand, the Federal Rule of Evidence 702 (Testimony by Experts) establishes that:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

This is how the court defines the expert participation in the understanding of a case or claim. Adhering to this rule, the expert can opine about that which helps the jury or judge rule on a case or claim. Basically, if an expert speaks in court correctly using current scientific evidence to back up his or her conclusions, the testimony is acceptable under ‘702.’

The aspect referring to “reliable principles and methods” is the one most revised according to new, tested, valid, reliable, acceptable, and most importantly, relevant knowledge (art and science) added to our profession. "The practice of medicine is an art based on science," said William Osler. This definition doesn’t change; what change is what we take to be “reliable principles and methods.” As the findings of science[20] evolves, what was once testable and reliable may now be considered obsolete and substituted for new scientific methods[21]. As science develops so does clarity.

The decision if an expert testimony is admissible or not depends on how well he uses scientific knowledge, methods, and standards of care[22] to help more elusive concepts - the focus of the legal inquiry. We do this while determine to remove speculation and bias.

Before the Federal Rule of Evidence 702 was presented to the scientific and legal communities, the standard for admissibility of expert testimony was known as the “General Acceptance Standard.” It was first set forth in 1923, as a result of Frye vs. United States [293 F. 1013; 34 A.L.R. 145 (D.C. Cir., 1923)]. It is known as the ‘Frye test’, and states that a scientific principle is admissible as evidence only after gaining a general acceptance in the field to which it belongs. After the creation of the Federal Rule of Evidence 702, the United States Supreme Court unanimously decided that it supersedes Frye’s General Acceptance test because it pursues scientific knowledge with more rigor and allows the judge to decide on the relevance of the scientific information provided.

In Daubert vs. Merrell Dow Pharmaceuticals, Inc. [509 U.S. 579 (1993)], the United States Supreme Court ruled that under the Federal Rules of Evidence, Frye’s General Acceptance Standard was not enough to rule out biased testimony and so a new standard was created. Called the ‘Daubert test’ of evidence admissibility (also known as ‘Relevant Analysis’), it allowed trial judges to examine the expert evidence during pretrial, making for a closer inspection than the Frye Test had permitted. It was designed to keep bias, often presented in the form of untested ‘science’, out of the courtroom, where convincing but unscientific experts could mislead the jury. Because of this strong rule, the judge acts as a ‘gatekeeper’ to what gets to the jury, weeding out ‘junk science’[23]. The Daubert Court revised Rule 702 to require that an expert’s testimony must amount to “scientific knowledge” in order to be admissible as evidence to a case.

The ‘Relevant Analysis’ (Daubert test), was adopted for the Federal courts, replacing Frye. Many States’ courts are now switching from Frye to Daubert, based upon the Federal Rule of Evidence 702. The goal is to provide judges with an important tool for preventing the introduction of conjecture and ‘junk science’ under the facade of expert testimony.

The court involved in the Daubert case interpreted this rule to impose judges to base admissibility of expert testimony on the reliability and relevance of scientific principles. As part of the decision, four factors must be addressed in determining the soundness of the methodology applied by the expert:

1) Whether the theory or technique used has been tested;
2) Whether this theory or technique has been subjected to peer-review and publication;
3) The known or potential rate of error, or the existence of standards;
4) Whether the theory or technique used has been generally accepted.

Additionally, in 1999, the Supreme Court decision of Kumho Tire Co. Ltd, v. Carmichael [526 U.S. 137 (1999)], extended the ‘Daubert’ ruling to testimony based on the expert’s experience in the field at issue, giving the court more discretion to evaluate expert’s testimony, and adding that Daubert applies not only to scientific knowledge, but to “technical” (knowledge acquired by experience) and “other specialized” (not defined by the law) knowledge as well.

Fundamentally, forensic MHP effort boils down to the application of the ever-growing methods, increasingly greater precision, and rising ability [of the MHP] to show the truth or falseness of psychological afflictions in the courtroom. In essence, the field is constantly evolving.


[1] Attorney: When a person trained and licensed to practice law, meaning a lawyer, represents clients in legal matters (both in and out of court) and gives legal advice, that lawyer is called an attorney.
[2]Forensic: Relating to or dealing with the application of scientific knowledge to legal problems.
Narrative (Written) Forensic Report: a written statement of the value, quality, importance, extent, or condition of something.
[3] Examination: The act or process of inspecting or testing for evidence of disease or abnormality.
[4] IME: Independent Medical, Psychiatric, or Psychological Examination. A mental health assessment conducted by a qualified MHP not involved in the treatment of the individual, at the request of a third party.
[5] Evaluation: The act of considering what was examined in order to judge its value, quality, importance, extent, or condition.
[6] Testimony: Statement made by a witness, under oath, in a legal proceeding.
[7] Criminal Trial: An examination of a claim of an unlawful action done with malicious intent, involving the offering of testimony before a tribunal (court).
[8] Testify: The making of a statement under oath.
[9] Lunacy: To be luney
[10] Expert: A person who is very knowledgeable or highly skilled, trained, or experienced.
Expert Witness: An individual permitted to present opinion in court on matters of fact that are beyond the expertise of ordinary citizens. A qualified forensic examiner that can state and explain, in an understandable and credible manner, the clinical data, the opinion, and the basis for it, to a judge and jury.
[11] Federal Rules of Evidence: According to the Uniform Rules of Evidence Act, these are instructions on how to decide on admissibility of expert opinion. See Appendix A.
[12] Examinee (also Evaluee): A person, plaintiff or defendant that is examined.
[13] Fact Finding Process: The series of steps taken by the forensic MHP that lead to an expert opinion based on the evidence gathered.
[14] Collateral sources of information: All material (legal, medical, psychological, police) collected to enhance the knowledge of an examinee.
[15] Forensic MHP: (Psychiatrist, Psychologist, Psychiatric Social Worker, Psychiatric Registered Nurse); the professional that is qualified to be called upon and apply behavioral knowledge in court of law in order to assist an attorney, and ultimately the court, in the establishment of legal decision.
[16] Symptom: reported as subjectively experienced – what the patient reports.
[17] Sign: objectively detected by observations and tests – what the doctor observes.
[18]Doctor (medical): Professional that provides medical care or treatment.
Patient: One under medical care.
Therapy: (G. therapeia) Treatment.
Psychotherapist: one that provides psychological care or treatment.
[19] Statute: An act of legislature to enact or prescribed conduct, define crimes, and in general to promote public welfare.
[20] Science: A method that, when applied, will lead to scientific knowledge.
[21] Scientific method: It is open, public, repeatable, and its conclusions are based upon evidence.
[22] Standards of care: A MHP must act as a reasonable clinician would act, under comparable circumstances. He is required to exercise, in diagnosis and treatment, that degree of knowledge, skill, and care which is ordinarily had and used by other members of his profession in similar circumstances.
[23] Junk Science: Opinions that are based on evidence that falls below the standards of science.

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