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PubMed1993

The differences between forensic psychiatry and forensic psychology.

Forensic psychiatry and forensic psychology face a common threat: the erosion of their credibility. It is proposed that they can combat this threat better by collaboration than by independent efforts. Similarities between the two professions are reviewed to examine their potential for collaboration. Their differences are reviewed to demonstrate the value of that which they can contribute collaboratively, beyond that which either can contribute independently, to increasing their credibility in the eyes of the public and the courts. Three specific areas for collaboration are proposed: individual practice, quality control of expert testimony, and training.

Clinical Competence↗
PubMed2004

Neuropsychologists diagnose traumatic brain injury.

The case of John versus Im (2002) stands for the proposition that clinical neuropsychologists are not qualified to diagnose traumatic brain injury. This ruling by the Supreme Court of Virginia prohibits neuropsychologists from testifying about these professional conclusions in the courtroom. However, in clinical practice neuropsychologists are often asked to disentangle the relative contribution of brain dysfunction and psychological factors to presenting symptomology. In the proposed submission, the authors provide an analysis of the neuropsychological testimony at issue in John versus Im using the admissibility standards for expert testimony that were established and refined by a trilogy of cases from the Supreme Court of the United States. The paper provides support for the notion that neuropsychological method has an established scientific base of knowledge, standards for clinical competence, and evidence of peer-reviewed acceptance by medical related disciplines. No other scientific discipline has employed a more rigorous methodology for assessing cognitive function and disentangling the relative contributions of brain dysfunction and psychological factors to presenting symptomology. By limiting the testimony of neuropsychologists as to cause of an individual's cognitive impairment, courts will exclude opinions based on scientific research and specialized knowledge that would assist in the trier of fact.

Brain Injuries↗
PubMed1994

The hired gun expert witness.

This article briefly discusses the role of the expert physician witness at trial and describes what is emerging as the physician professional witness (AKA hired gun). The trial court's powers to evaluate the professionalism and objectivity of an expert witness are examined in light of a recent Western District Missouri Court of Appeals case. This case, while limited to its peculiar set of facts, permitted both a hearing and production of documents of a physician who had been hired to testify. This article reviews the role of the expert physician witness in Missouri litigation in light of recent caselaw outlining discovery procedures to monitor use of professional witnesses. The term "professional witness" does not refer to witnesses who are professionals, but rather to persons who make their entire living witnessing. The Missouri Court of Appeals ruling in State ex rel. Lichtor v. Clark, 845 S.W.2d (Mo.App. W.D. 1992) elucidates the Missouri Courts' authority in sorting out unprofessional physicians who would offer unobjective expert testimony. While this particular article is intended for medical readership and discusses expert physician witnesses, expert witnesses can come from any profession including engineering, accounting, nursing, etc. It might thus be assumed that the Lichtor Court's procedure may be applied to any expert whose objectivity has been put into question.

Expert Testimony↗
PubMed1996

[Medical expert assessment in civil and criminal law--legal evaluation of medical expert opinion].

The constitutional position of the judge and the medical expert witness during a lawsuit is explained. From this, the demands on a judicial expert witness for the preparation of his expert assessment are derived and the judge's function in the appointment of the expert witness is explained. Additionally, criteria, duties, and rules are worked out, which should be followed by the judge during assessment of the medical expert testimony.

Criminal Law↗
PubMed1988

Preparing the company physician to testify at legal proceedings.

Company physicians are frequently required to testify as to their findings and opinions in cases where employees' health jeopardizes their work status. The company physician may face conflicting ethical obligations in weighing the physician-patient relationship against the needs of the employer. If the employee seeks outside health care assistance, the company physician may have to testify against other health care professionals. The three most common forums in which the company physician may be asked to submit medical reports and/or testify are arbitration hearings, workers' claims for Social Security disability, and workers' compensation insurance benefits. Company physicians should be aware of the nature of each type of proceeding and they should be prepared to render persuasive expert testimony.

Ethics, Medical↗
PubMed2006

Characteristics of physicians who frequently act as expert witnesses in neurologic birth injury litigation.

OBJECTIVE: Much debate surrounds physicians who testify in controversial types of medical malpractice litigation, but little is known about them. We sought to describe characteristics of physicians who frequently act as expert witnesses in neurologic birth injury litigation. METHODS: Using jury verdict reports, we identified 827 cases between 1990 and 2005 involving birth-related neurologic injury to a child. Frequent expert witnesses were defined as those associated with more than 10 cases. From the verdict reports and other public data sources, we compiled case descriptions (injury type and severity, legal outcomes) and characteristics of the frequent witnesses (age, gender, board certification, academic publication record). We analyzed these characteristics by comparing witnesses with each other (plaintiff compared with defendant) and with nationally representative data. RESULTS: Seventy-one frequent witnesses participated in 738 cases (89% of the sample), which paid 2.9 billion US dollars in compensation. Most (56 of 71) testified for one side in at least three fourths of cases, and 40% of cases were located outside the witnesses' home states. Frequent plaintiff witnesses had a higher median annual case rate than their defendant counterparts (2.9 compared with 1.9 cases, P=.002). They were also older (57.2 compared with 50.8 years, P=.007), less likely to have subspecialty board certification (38% compared with 95%, P<.001), and had fewer academic publications (5.0 compared with 53.5, P=.002). CONCLUSION: A small cadre of physicians testifies in most neurologic birth injury litigation, and witnesses tend to act consistently for one side. Plaintiff witnesses have fewer markers of expertise than defendant witnesses. These descriptive and analytical findings may reflect suboptimal expertise or bias in physician expert testimony.

Birth Injuries↗
PubMed1994

Daubert v. Merrell Dow Pharmaceuticals: a new standard for scientific evidence in the courts?

The Supreme Court, in Daubert v. Merrell Dow explored the guidelines for admitting "scientific evidence" by way of expert opinion in legal cases. The Federal Rules of Evidence that were revised in 1975 did not explicitly mention the Frye standard and thus left it unclear as to what guidelines should be used by judges in federal courts. The Court held that the Frye rule was superseded by the new Rules and that the judge had to exercise some gatekeeping functions. An expert with sufficient credentials and something relevant to say was an insufficient standard. The implications of this ruling for psychiatric expert testimony are reviewed.

Clinical Competence↗
PubMed1991

Juror and expert conceptions of battered women.

The admissibility of expert testimony at the trial of a battered woman defendant is very controversial. Some courts allow the testimony, others do not. This study focuses on two criteria judges use to determine admissibility and attempts to provide an empirical foundation that can assist their decisions. First, the area of study about which an expert testifies must be shown to be reliable and valid. Second, the subject matter of the testimony must be beyond the ken of the average juror. The first criterion was addressed by assessing the opinions of 45 researchers in the field of spousal violence. The second criterion was examined by evaluating the knowledge of 141 jurors about myths and empirical research findings associated with battered women. Results indicate that researchers showed strong consensus on 14 of 18 issues included in a survey about the reactions of abuse victims, and that compared to these "experts," jurors have limited knowledge on these issues. These results suggest that many of the scientific findings concerning battered women are reliable and that the information is often beyond the ken of the jury. The findings argue for the use of expert testimony in certain cases involving battered women defendants.

Attitude of Health Personnel↗
PubMed2006

Psychiatric evidence on the ultimate issue.

Federal Rule of Evidence 704(b) prevents psychiatrists and other expert witnesses in federal criminal trials from testifying as to whether a defendant did or did not have a mental state or condition comprising either an element of the crime or an element of the defense. This paper describes the origins of the Rule and its judicial development. The Rule is an exception to a 20th century trend that has seen witnesses increasingly permitted to address the ultimate issue. It has been applied inconsistently, has been criticized in appellate decisions, and has spawned an idiosyncratic legal definition of "helpful." Attempts to circumvent it have included inviting jurors to make inferences, inventing hypothetical cases that mimic the one before the court, and eliciting expert testimony on what is "possible" or "probable." Courts have held that rendering transparent the reasons behind an expert's conclusions can minimize the damage done by ultimate issue testimony.

Expert Testimony↗
PubMed1994

Enhancing the role of the scientific expert witness.

There is growing attention to complex scientific questions in legal cases and the need for scientific expert testimony in these cases, including environmental health issues. This commentary addresses some problems common in expert witness work and recommends ways in which the legal system, the scientist, and our educational institutions can enhance the roles of experts. These recommendations may be particularly relevant for training programs in toxicology, epidemiology, and risk assessment.

Expert Testimony↗
PubMed2005

On sound and unsound mind: the role of suicide in tort and insurance litigation.

Suicide continues to be a recognized as a crime by common law in a few states. In those jurisdictions, the beneficiary of a claim must prove that the individual who attempted or committed suicide was of unsound mind, to avoid having the patient's act declared illegal, which would bar recovery of the claim. In malpractice and insurance cases, expert testimony is required regarding the mental state of the individual who attempted or committed suicide. Psychiatric testimony varies widely, depending on the legal definition of "unsound mind" and the highly subjective interpretation of legal definitions. Some experts equate suicide with an unsound mind, whereas others apply M'Naghten criteria. Some psychiatrists who disagree with criminalizing suicide refuse to participate in these proceedings. In suicide malpractice cases, the appropriate function of the expert witness is to provide testimony about the standard of care. When experts attempt to testify about "sound or unsound" mind, they must be mindful of the imperfect fit between psychiatry and the law.

Adult↗
PubMedDate not supplied

Between passion and policy: litigating the Guckenberger case.

This article describes the Guckenberger lawsuit from the perspective of the attorneys who litigated the case on behalf of Boston University. It first discusses the events leading to the lawsuit, including then-Provost Jon Westling's speeches, his articulation of new policies regarding documentation for accommodations requests, and the university's refusal to allow course substitutions for required foreign language courses. The article then describes the main events in the lawsuit that resulted from those policy changes, focusing first on pretrial matters, such as the university's search for experts, the various motions filed prior to trial, and tactical issues. Moving to the trial itself, the article discusses the nature of the witness and expert testimony presented to the court and touches on the differences of opinion expressed at trial by experts in the field of learning disabilities. Finally, the article sets forth the court's ruling on the major issues in the case and reflects on the case's impact on institutions of higher education.

Adult↗
PubMed2000

Sexual predator evaluations and phrenology: considering issues of evidentiary reliability.

This article reviews six assessment procedures used for assessing the recidivism risk of previously convicted sexual offenders. The review of these procedures examines whether they comply with generally accepted ethical and practice standards. With few exceptions, most risk assessment instruments fail to comply with these standards. Currently used instruments for risk assessment continue to rely excessively on clinical judgment; and, as a result, they remain at a preliminary stage of development. Consequently, these instruments amount to experimental procedures; and, therefore, they cannot support expert testimony in a legal proceeding.

Crime↗
PubMed2000

Ethical issues in expert opinions and testimony.

As the private sector rehabilitation industry matures, certain ethical and malpractice issues have emerged. This article provides an overview of ethical issues in private for-profit practice, with particular focus on expert testimony, using examples from a sample of claims filed with the National Association of Rehabilitation Professionals in the Private Sector (NARPS), malpractice insurance companies, selected court cases, and complaints submitted to NARPPS Standards Compliance Review Board Committee and the Commission on Rehabilitation Counselor Certification. It is evident that complaints have a direct relationship to at least half of the ethical canons of the Code of Professional Ethics for Rehabilitation Counselors because they most frequently involve issues related to competence, the client-counselor relationship, professional relationships, confidentiality, and use of the certified rehabilitation counselor (CRC) designation.

Confidentiality↗
PubMed1975

Aphasia and the expert medical witness.

Psychiatrists have recently been criticized from within and outside the profession for rendering professional opinion in instances where their qualifications are inadequate. In forensic psychiatry, the problem of predicting dangerousness is a notable example. The forensic psychiatrist may also be called to testify as to the present or future competency of the aphasic patient. It therefore behooves the medical expert to be fully aware of the new developments within the field of aphasiology so that in cases involving aphasia the best combined expert testimony can be rendered the court.

Aphasia↗
PubMed1998

Reactions to rape: a military forensic psychiatrist's perspective.

Accusations of rape or sexual harassment are currently very high-profile in the military. This article discusses rape allegations in the military legal system from a psychiatric perspective. The original definition of "rape trauma syndrome" and subsequent psychiatric thinking about the diagnosis are briefly outlined. Common reactions seen in military victims in this era are described. A prototypical military case is presented. An adequate evaluation of an alleged victim is outlined. Credentials and preparation of an expert witness are also briefly discussed, with cautions about the use of expert testimony in cases of alleged sexual assault and rape trauma syndrome.

Adult↗
PubMed2006

Commentary: The medical practitioner as an expert.

This brief commentary reviews the concept of nest fouling, and advances the view that a different approach to giving expert testimony (that of impartially assisting the court) will largely negate nest-fouling issues.

Expert Testimony↗
PubMed1992

Child sexual abuse and forensic psychiatry: evolving and controversial issues.

Child sexual abuse has received growing attention in recent years, and the topic continues to spark controversy among mental health and legal professionals as well as in the popular media. This paper will review the concept of child sexual abuse, cover relevant definitions, address the clinician's role, and then will address the principal evolving and controversial areas. These areas include psychic damages, false allegations, improper investigatory techniques, use of anatomical dolls, admissibility of expert testimony, hearsay testimony, and the competency of minors to testify.

Adolescent↗