Working on the Borderline Between Law and Mental Health

• Autor: Eric Goldwaser

“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 attorneys¹, 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 forensic² 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 examination³. The IME⁴ also comprises the evaluation⁵ of the data collected during the examination.

The first recorded example of forensic testimony⁶ in a criminal trial⁷ took place at the trial of Earl Ferrers in 1760, in which Dr. John Monro, of Bethlem, England, testified⁸ by teaching the court about ‘lunacy⁹.’ 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 experts¹⁰ 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 Evidence¹¹.” 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 examinee¹² 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 process¹³.

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 information¹⁴, 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...