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PubMed1993

Evaluating the best interests of the child--a model of multidisciplinary teamwork.

This article describes the rationale, goals and procedure of a working model of multidisciplinary teamwork in conducting clinical evaluations of children and families and preparing expert testimony. Over the past five years, the team has evaluated over 60 cases involving child abuse and neglect, and questions of parental ability. Teamwork can reduce the distorting effects of personal biases, beliefs and countertransference issues. The contribution of integrating different theoretical viewpoints (theories of development, object relations, family systems, etc) is discussed. Recommendations include: (a) separation of roles of expert witness and therapist: (b) utilization of different diagnostic tools (psychodiagnostic tests, observations of interaction, joint clinical interviews, etc); (c) value of examining the feasibility of the recommendations with parents, care givers and community workers; and (d) strategies of dispute resolution and attainment of parental consent, utilizing the effects of potential judicial power and focusing on the best interests of the child.

Child↗
PubMed2002

Testing testimony: toxicology and the law of evidence in early nineteenth-century England.

This essay's principle objective is to examine how, when confronted with a case of possible criminal poisoning, early nineteenth-century English toxicologists sought to generate and to represent their evidence in the courtroom. Its contention is that in both these activities toxicologists were inextricably engaged in a complex communicative exercise. On the one hand, they distanced themselves from the instabilities of language, styling themselves as testifiers to fact alone. But at the same time, they saw themselves as deeply implicated in the difficulties of forging a coherent signifying system out of a disparate collection of signs that in themselves bore no intrinsic meaning. The analysis has three main components: first, two suggest why criminal poisoning featured so prominently in the burgeoning legal literature on evidence which provided the framework for expert testimony in English courts; next, to show that the scientific evidence offered by toxicologists in poisoning cases can be usefully understood as a form of (unstable) language; and finally, to suggest that this recourse to signs informed the toxicologist's encounter with another type of courtroom expert-the legal advocate-who was equally (though differently) interested in manipulating signs in order to construct (and deconstruct) legally sanctioned proof.

England↗
PubMed2005

Help! I've been sued: a guide to surviving a physician's nightmare.

Because many physicians will be sued for malpractice during their career, they need to know how to survive a lawsuit. This article is intended to assist doctors in understanding the phases of and players involved in a malpractice lawsuit. It covers discovery, the use of expert testimony, what happens during the trial, and the way malpractice law works in Minnesota. Having a better understanding of what happens during each phase of litigation helps to reduce the anxiety and uncertainty associated with being named in a malpractice suit.

Adaptation, Psychological↗
PubMed1985

The insanity defense: a difficult necessity.

The author considers the merits of the insanity defense in light of three premises. First, a defendant's sanity must be taken into account both in assessing culpability and in assigning punishment for a crime. Second, all members of society must be protected against harmful acts. And third, it is the responsibility of psychiatrists to assess, but not to predict, the existence of mental illness. After briefly discussing the limitations of expert testimony and the adversarial demands of the judicial system, the author concludes that the insanity defense should be retained but altered, and that psychiatrists should bear the burdens of advocating for the mentally ill.

Commitment of Persons with Psychiatric Disorders↗
PubMed2005

Will the law come running? The potential role of "brain fingerprinting" in crime investigation and adjudication in Australia.

A major feature of the Australian criminal justice system is that jurors assess witness credibility and are the ultimate finders of fact. Recognising the occasional fallibility of humans in detecting truth and deception, the jury's function may be assisted by highly regulated expert evidence about a variety of scientific techniques. A recent scientific development has been the invention of "brain fingerprinting" (BF) by Dr Larry Farwell in the United States. Brain fingerprinting measures brainwave functioning to detect awareness of crime-relevant information in order to distinguish between guilty and innocent suspects. This article considers whether BF could be used for crime investigation and adjudication in Australia. By examining the rules of expert evidence and the principles relating to "novel scientific evidence", the admissibility of BF in the various Australian jurisdictions is evaluated. The utility of BF in criminal investigations and counter-terrorism initiatives is also canvassed. The authors conclude that, at the present time, it is unlikely that expert testimony on BF will be admitted in Australian criminal trials. However, the technique potentially offers other benefits to the criminal justice system, thereby warranting its consideration as a "criminal and investigative tool of the future".

Australia↗
PubMed1999

Psychiatric testimony and the "reasonable person" standard.

The aim of this article is to explore the boundaries of psychiatric testimony in criminal cases. In a series of vignettes, the author describes applications of psychiatric testimony in nontraditional areas. These are criminal cases in which the defendant-who was not mentally ill-acted in response to a situation that would tend to trigger violence in many persons: protection of self or others. In scenarios involving self-defense, duress, and passion/provocation, the dynamics involve interpersonal situations that give rise to behavior that may be entirely foreign to the defendant but that could not have been avoided. The law looks at these matters through a "reasonable person" standard: what the ordinary citizen would have done. In principle, there is often no need for expert testimony, because judges and jurors are presumed able to assess reasonableness, justification, or provocation. The trier of fact, however, could use a psychiatric explanation to assess culpability. The author discusses the cases in terms of application and admissibility.

Adult↗
PubMed1994

The dental practitioner's role as an expert witness.

Dentists of different specialties have been called upon for their expert testimony in dental or related injury cases. These injuries can be due to an auto accident, a fall, professional negligence or injury by an animal. The practitioner is asked to evaluate the injury, write a report and perhaps testify in a deposition or a court of law for a professional opinion. This article is to discuss the role of the dental practitioner in litigation. The dentist-witness' responsibilities, legal protections, the necessary tools to give an opinion, the characteristics of a good expert witness, the demeanor in a deposition and court appearance are discussed.

Dentists↗
PubMed1990

[The significance of anticipating suspected brain death for the accusation of failure to treat according to Section 323c of the Federal Penal Code].

Brain death is usually not confirmed by neurological and angiographical techniques until long after it has actually taken place. In connection with a case in which expert testimony was heard, clinical and radiographic evidence and the autopsy statement are discussed as criteria of continuing development of brain edema; on the basis of the evidence it was possible to conclude that the cerebral circulation had not yet ceased at the time assumed.

Brain↗
PubMed1991

Clinical judgment in forensic neuropsychology: a comment on the risks of claiming more than can be delivered.

There is a vast and growing literature in psychology demonstrating the general limits of human judgment and clinical inference. These findings clearly apply in the new specialty of clinical neuropsychology, and there is little empirical research to support the widespread belief that judgmental accuracy correlates substantially with experience, professional stature, or reputation as a neuropsychologist. However, the demand characteristics of expert testimony in the forensic arena may encourage individual neuropsychologists to state or intimate that they have unique or special expertise in understanding brain-behavior relationships, or in predicting outcomes following cerebral insult or injury. These claims will be increasingly difficult to substantiate as attorneys become more conversant with the literature on human judgment.

Brain Damage, Chronic↗
PubMed2000

On the assessment of children in suspected child sexual abuse in light of Daubert and Frye: limitations of profiles and interviews as scientifically grounded evidence.

Practice with children and families entails the higher probability of encountering forensic issues of child sexual abuse (CSA) assessments for which relatively few psychologists, allied mental health and legal practitioners are sufficiently well equipped. The current paper reviews some of the key psycholegal issues bearing on the assessment of suspected CSA in the contexts of: (a) recent psycholegal precedence and common law rules of reliability and admissibility of CSA profile evidence; (b) the empirical problems with CSA syndromes; and (c) the problems with children's interviews as evidence, and suggestions for valid interviewing guidelines supporting free recall. These psycholegal issues are presented in terms of the Frye standard for expert testimony and the Federal Rules of Evidence, with recent American and Canadian case illustrations, such as Daubert v. Merrell Dow Pharmaceuticals, Hadden v. State of Florida (1997), Bighead v. The United States of America (1997), Diocese of Winona v. Interstate Fire & Cas. Co. (1994), and R. v. Simpson (1996).

Child↗
PubMed1991

Forensic neuropsychology: a reply to the method skeptics.

Various critics or "method skeptics" have contended that clinical neuropsychology is not sufficiently developed as a science to be offered as evidence in legal or trial proceedings. The present article attempts to balance the extreme position of the method skeptics with an overview of legal and research data that support forensic applications of neuropsychology. It is suggested that clinical evidence can usefully inform legal decision making and that the modern trend has been for courts to be increasingly open to such expert testimony. The relevance of studies of clinical judgement, experience, and actuarial prediction is discussed, and neuropsychological assessment validity is specifically addressed. It is concluded that the arguments of the method skeptics should guide future research and caution forensic neuropsychologists, but that a retreat from the courtroom is unwarranted.

Brain Damage, Chronic↗
PubMed2005

The impact of mental health evidence on support for capital punishment: are defendants labeled psychopathic considered more deserving of death?

Controversy surrounds the use of the Hare Psychopathy Checklist--Revised (Hare, 1991, 2003) in capital murder cases, where it has been introduced to support prosecution claims that a defendant represents a "continuing threat to society". Although widely presumed to have a prejudicial impact (e.g., American Psychological Association, 2004), little is known about how the lay public reacts to data derived from ostensibly stigmatizing assessment instruments such as the PCL-R. The present study examined the effect of psychopathy data on layperson attitudes by having 203 undergraduates review a capital murder case where the results of the defendant's psychological evaluation were experimentally manipulated. When expert testimony described the defendant as psychopathic, a much larger percentage of participants supported a death sentence (60%) than when testimony indicated that he was psychotic (30%) or not mentally disordered (38%). Interestingly, participant ratings of how psychopathic they perceived the defendant to be--regardless of the testimony condition to which they had been assigned--also predicted support for a death sentence. Given the limited probative value of the PCL-R in capital cases and the prejudicial nature of the effects noted in this study, we recommend that forensic examiners avoid using it in these trials.

Antisocial Personality Disorder↗
PubMed1996

Mental defenses and posttraumatic stress disorder: assessment of criminal intent.

Since its formal introduction into psychiatric nomenclature more than a decade ago, the diagnosis of posttraumatic stress disorder (PTSD) has become firmly entrenched in the legal landscape. In part, this is because PTSD seems easy to understand. It is one of only a few mental disorders for which the psychiatric Diagnostic and Statistical Manual (DSM) describes a known cause. Since the diagnosis is usually based on patients' self-report, however, it creates the possibility of distortion aimed at avoidance of criminal punishment, and, as a result, has achieved mixed success as a criminal defense. When providing expert testimony, mental health witnesses must take care to distinguish between mere PTSD and a causal connection between PTSD and the criminal act in question. PTSD has not only been used to abrogate or diminish responsibility, but also to arrange pre-trial plea bargaining agreements or play a role in sentencing determinations. The author explores various uses and potential abuses of PTSD in criminal jurisprudence and offers suggestions regarding retrospective PTSD assessment.

Crime↗
PubMed1999

Empirical research on the insanity defense and attempted reforms: evidence toward informed policy.

The paper addresses some common questions about the insanity defense and issues raised by commonly proposed "reforms." The first section begins with a brief description of the insanity defense and the reasons for its existence in the law. It then examines some of the popular myths and public misperceptions surrounding the insanity defense. The next three sections discuss proposed "reforms" and the empirical research that addresses their effect. These reforms, including various procedural changes in definitions, burden of proof, and expert testimony, the institution of a guilty but mentally ill verdict, and the abolition of the insanity defense itself, are reviewed, along with relevant research findings and policy issues. Finally, the development of sound conditional release programs for criminal defendants found not guilty by reason of insanity is proposed as a reform option which could serve the objectives of enhancing public safety and access to appropriate treatment while continuing to meet the objectives of the insanity defense within criminal jurisprudence.

Expert Testimony↗
PubMed1999

Empirical research on the insanity defense and attempted reforms: evidence toward informed policy.

This paper addresses some common questions about the insanity defense and issues raised by commonly proposed "reforms." The first section begins with a brief description of the insanity defense and the reasons for its existence in the law. It then examines some of the popular myths and public misperceptions surrounding the insanity defense. The next three sections discuss proposed "reforms" and the empirical research that addresses their effect. These reforms, including various procedural changes in definitions, burden of proof, and expert testimony, the institution of a guilty but mentally ill verdict, and the abolition of the insanity defense itself, are reviewed, along with relevant research findings and policy issues. Finally, the development of sound conditional release programs for criminal defendants found not guilty by reason of insanity is proposed as a reform option which could serve the objectives of enhancing public safety and access to appropriate treatment while continuing to meet the objectives of the insanity defense within criminal jurisprudence.

Attitude↗
PubMed1992

Radiologists, communication, and Resolution 5: a medicolegal issue.

Resolution 5, adopted by the American College of Radiology, sets forth principles of direct communication that are important to every radiologist. This article reviews pertinent court decisions that affect radiologists and illustrates the importance of Resolution 5. In recent cases in state courts, liability standards have focused on four areas: negligence based on failure to personally inform clinicians of the diagnosis, ability of the jury to decide whether the radiologist's actions were appropriate, provision of information to the correct person, and necessity for expert testimony to define urgency. An important factor in liability cases appears to be the judgment of the radiologist in selection of the correct individual to receive the radiology report. The authors believe that electronic communication devices (eg, voice mail and fax machines) may potentially breach confidentiality and that such devices should therefore be used sparingly. Verbal communication by the radiologist to the referring physician, in addition to a written report, should avoid liability and improve quality of care for the patient.

Communication↗
PubMed2000

From the lab to the police station. A successful application of eyewitness research.

The U.S. Department of Justice released the first national guide for collecting and preserving eyewitness evidence in October 1999. Scientific psychology played a large role in making a case for these procedural guidelines as well as in setting a scientific foundation for the guidelines, and eyewitness researchers directly participated in writing them. The authors describe how eyewitness researchers shaped understanding of eyewitness evidence issues over a long period of time through research and theory on system variables. Additional pressure for guidelines was applied by psychologists through expert testimony that focused on deficiencies in the procedures used to collect the eyewitness evidence. DNA exoneration cases were particularly important in leading U.S. Attorney General Janet Reno to notice the eyewitness literature in psychology and to order the National Institute of Justice to coordinate the development of national guidelines. The authors describe their experience as members of the working group, which included prosecutors, defense lawyers, and law enforcement officers from across the country.

Expert Testimony↗
PubMed1986

The law and congenital malformations.

In 1967, I indicated that the number of lawsuits involving malformed infants seemed to be increasing, not realizing that the increase was foretelling an epidemic. The reasons for this epidemic are described in this paper and are due to attitudes and happenings in the medical, legal, and lay sectors of our society. Case histories have been used to demonstrate that the litigation process can produce pain and suffering. The case histories also indicate that, when the members of family become orchestrated by a lawyer into the position of devoting a great deal of their energy to litigation, many high priority family responsibilities are ignored and important ethical standards are distorted. To win at all costs may be good for a football team, but it is obviously bad for a family. We must take drastic changes in the method of supporting the victims of disease and injury so that litigation is no longer necessary to compensate and support patients and families, whether negligence is or is not a factor. Recommendations for diminishing the malpractice crises include: education of the patient about the consequences of the litigation process--that only a small portion of the malpractice premium dollar ever reaches the patient and that most human malformations are not produced by medical negligence, altering the deteriorating image of the physician, reversing the increase in irresponsible medical expert testimony and changing the laws pertaining to medical licensure and loss of medical licensure, improving the health care system, making the awards more realistic by taking into consideration community and insurance resources of the patient and by eliminating lump sum awards and "punitive" awards, decreasing lawyer representation in legislative bodies so that legal reforms will become a possibility, and eliminating the contingency fee system by replacing it either with legal insurance so that the attorney is working for the patient or by adopting no-fault malpractice insurance with binding arbitration so that the negligently injured patient is compensated properly. The process of litigation rarely solves the patient's problems and frequently develops into a disease all its own.

Congenital Abnormalities↗