The Psychiatrist as an Expert Witness: Choosing Wisely

In stark contrast, a psychiatrist retained by the state concluded that Marshall, in fact, isn't retarded at all. She's able to drive a car, maintain a checking account, and perform a variety of other skills necessary to function well in society. In September 2000, the jury found Marshall guilty but mentally ill of felony murder. She was sentenced to life in prison.

The state of mind or the intent required to commit

The role of psychiatric treater and expert are two very different and conflicting roles…Unfortunately, attorneys may unknowingly make the mistake of retaining a client's treating psychiatrist rather than an independent forensic expert, which can be disastrous for a case.

a particular crime - mens rea - has long been a subject of intense courtroom debate. Persuading a jury that your client's alleged actions were influenced by particular mental factors necessitates a strategic interplay between a defense attorney and his or her witnesses. Psychiatrists can play a critically important role in this process. In many situations, their assistance and testimony can make or break a case. Understanding the functions they serve, selecting an expert carefully, and avoiding commonly made mistakes will dramatically increase the odds for success when retaining an expert.

The Treating Psychiatrist vs. the Expert Witness

Psychiatrists are physicians with broad medical backgrounds who are licensed to prescribe medication. In the most basic terms, the clinical goals of a psychiatrist are to diagnose, treat, and ultimately improve a patient's mental well being. Forensic psychiatry is an accredited sub-specialty of psychiatry in which physicians apply medical, neuroscience, and mental health expertise and clinical experience to court cases in order to form an objective "expert" opinion in legal litigation.

Most forensic psychiatrists maintain a private practice as well as serve in an expert witness role - the functions are not exclusive. Note, however, that "treating" psychiatrists should avoid testifying on behalf of their own patients in an "expert" witness capacity in most cases. During litigation treaters should only act as a "fact" witness because their testimony is almost always solely based on the observation of, and information reported by, the patient. "These conclusions are offered not as opinion but simply as a report of what the therapist thought, did, and documented during therapy" (see "On Wearing Two Hats: Role Conflict in Serving as Both Psychotherapist and Expert Witness," by Stratsburger, Gutheil, & Brodsky, American Journal of Psychiatry, v. 154; pp. 448-456, 1997).

Conversely, in addition to testifying about these issues, an expert is also permitted by the court to examine and draw conclusions from all the available information. "A treater relies on self-reported information from his or her patient. That's very different from someone whose mission is to find corroborating evidence or contradictory evidence in the total breadth of available data," points out Mark Levy, M.D., F.A.P.A., a forensic psychiatrist who has practiced clinical psychiatry and psychoanalysis for almost thirty years, and forensic psychiatry for the past decade. "A treater won't be privy to or read deposition testimony or see a police wrap sheet, for example," he clarifies.

The role of treater and expert are two very different and conflicting roles. In fact, the American Academy of Psychiatry and the Law considers it unethical to combine them, primarily due to potential breaches of physician-patient confidentiality. Unfortunately, attorneys may unknowingly make the mistake of retaining a client's treating psychiatrist rather than an independent forensic expert, which can be disastrous for a case.

Forensic psychiatrists are retained as experts in a variety of criminal (and civil) cases. In general, their assistance is most critical in high stakes cases; those in which life or liberty are in jeopardy. Their roles or services may also differ from case to case; however, experts are retained to serve in one of two capacities: either as a consultant or as a testifying witness. Often, the same expert will serve in both roles. For example, an expert may be retained in a case to educate counsel about the specifics of a particular mental disorder during the preliminary fact-finding stages of a case investigation. In another case, the expert may also evaluate the case, interview the client, perform psychological tests, assist in case development, provide written statements, and testify at a deposition or trial.

In highly complex or unusual cases, it may be beneficial to retain a team of experts - each with knowledge in a specific area. Says Mark Levy, "Ultimately any expert is relying on scientific method to try and get as accurate and probable conclusions as possible. One of the principles of science is that if you have two experts reaching similar conclusions there is a much higher probability that the conclusions are accurate than if a single expert does. If you use different methodologies and look for the intersections of the conclusions, you greatly increase the probability of accuracy."

Thus, multiple opinions are likely to help develop a more effective defense strategy.

Timing is Everything: Retaining an Expert

Regardless of the degree to which you plan to consult a psychiatrist about a case, it's far more effective to make some initial decisions and contacts early in the investigation phase. At this point, the expert can offer you tremendous insight into how to proceed with a defense strategy; for example, what questions you should ask about the case. This also gives the expert plenty of time to review the available data and reach well-researched conclusions. "Experts can be overloaded with large amounts of information, often with too short of a period of time to process it," says Richard Hall, M.D., a forensic psychiatrist, who's consulted and testified in numerous criminal cases. Adds Hall, "An expert who's constrained has a much more difficult time than an expert who's given the time and materials to really understand a case well."

Thorough research is the key to finding

"You have to assume that everyone you hire as a consulting witness may be called as a testifying witness. So you don't want somebody who doesn't have a good reputation or doesn't have the experience." - Jack Zimmermann, Esq.

an expert that meets your case's requirements. While there are a number of key characteristics that you should look for, the most important criteria when hiring an expert witness are qualifications and credibility, according to Jack B. Zimmermann, a Houston-based defense attorney renowned for several high-profile cases including United States v. David Koresh, et al., State v. Wanda Holloway, and State v. Gary Graham. "You have to assume that everyone you hire as a consulting witness may be called as a testifying witness. So you don't want somebody who doesn't have a good reputation or doesn't have the experience," Zimmerman says. "We generally prefer to have a witness who testifies for the most part for the prosecution, testify for the defense, because it adds to credibility."

Additional criteria to consider when evaluating an expert's credentials and credibility include:

• Educational background
• Special honors or certifications
• Type and number of years clinical experience
• Number of peer-reviewed publications
• Teaching experience
• Courtroom experience

"In retaining a forensic psychiatrist," Mark Levy argues, "counsel should look for highly experienced clinicians, [those] familiar with legal issues, who can weigh evidence and present logical and compelling explanations for their opinions based on the evidence in the case and the background of scientific knowledge pertaining to mental disorders and human motivation."

Before retaining an expert, not only ask for a copy of his/her curriculum vitae and verify its accuracy, confirm that the expert is in good standing with whatever review board governs his/her discipline You can be sure that the opposing attorney will challenge these qualifications, so make certain that there is nothing there that can cast doubt on credibility. And be sure to conduct an in-person interview. This will give you a chance to obtain information about his/her communication style, observe how the expert answers questions, and determine how s/he will be perceived by the jury.

Psychiatric diagnoses and terminology can be very complex. Says Richard Hall, "Juries don't like a lot of psychiatric jargon. Getting appropriate statistical/numerical material before a jury so that they can understand the commonality of some of these conditions can be helpful for understanding the impact of a mental illness or disability," explains Dr. Hall.

The ultimate goal of a testifying expert is to educate the jury, much like a teacher, about these issues. Says Mark Levy, "The biggest challenge is to take complicated, imprecise data and share this with other people in a form that's understandable and relevant…The expert, in an ideal circumstance, is there to aid the jury in reaching a conclusion - not to prejudge," Levy adds. Retaining an expert who can meet this challenge is critical.

There are many reasons for which testimony given by forensic psychiatrists may not be considered admissible. (Fed. R. Evid. 702-706) Most states rely on the Daubert standard, (although California and a few others are regulated by Frye) for determining "junk science." "Litigators must prepare their cases with an understanding that heightened scrutiny of all but the most non-controversial expert testimony is likely," warns Stuart A. Ollanik, in "Expert Testimony: Defeating the Kumho Challenge," (Trial magazine, 28, 30, November 1999).

The cost of retaining a forensic psychiatrist varies considerably, but is often equivalent to an attorney's fees and sometimes much more. They are paid hourly for their time, which includes reviewing information, interviewing the client, travel expenses, and any other time that they spend working on a case. Rates for being deposed or testifying in court are usually higher. Fees may also increase depending on how "expert" the expert is. Someone with very specialized knowledge can command much higher rates. Inevitably, however - usually during cross-examination - the question of how much the expert is being paid for his/her time to testify will be asked. If the sum is perceived to be grossly unreasonable, the judge or jury may question the motives of the testifying expert and credibility can easily be lost if the amount cannot be justified.

Avoiding Mistakes

Everyone makes mistakes - even attorneys and expert witnesses. Here are some pearls of wisdom to help you avoid them:

Recognizing the Limits of Expertise

According to Dr. Levy, one of the biggest mistakes experts make when testifying is not knowing the limits of their expertise, "You have to have the humility to admit when you don't know about a particular area in question." If you don't acknowledge these limits, the cross-examining attorney will surely make the issue a focus and the expert's credibility will be lost.

Adapt Quickly to New Information

Having the flexibility to evaluate new information as it's discovered can play a major part in the success or failure of the defense. "If new information emerges, that needs to be incorporated into the testimony. Some experts get so fixated on what they had planned to say that it's as if they ignore any countervailing point that may have emerged," affirms forensic psychiatrist Marc D. Feldman, M.D., Vice Chair for Clinical Services and Director of the Division of Adult Psychiatry within the Department of Psychiatry and Behavioral Neurobiology at the University of Alabama, Birmingham.

It's How You Say It

"The manner of testifying is probably as important as what a witness says. If the witness is trying to be cute, a smart aleck, won't answer the questions, or appears to be biased, their testimony won't be credible," warns Jack Zimmerman.

An Expert's Credibility

The ultimate goal of the forensic psychiatrist is to educate the jury so that they may come to an informed decision and judgment. If the expert comes across as unprepared for a trial or unfamiliar with the information being presented, all credibility can quickly be lost. "The best expert knows more about the issue or person than anyone else in the courtroom and hence can't be surprised," says Neil S. Kaye, MD., forensic psychiatrist and one of the world's leading experts on neonaticide/infanticide.

Opinion Shopping vs. Hired Guns

"Opinion shopping" refers to a situation in which an attorney consults with an expert to obtain preliminary findings and opinions about a case and subsequently decides not to retain the expert when their opinions are not in line with the defense's position. By the same token, experts who take on a case and are spoon-fed the information that they are to testify about are considered "hired guns." These are generally experts who testify only for the prosecution or only for the defense. When this happens, "You tend not to necessarily get the best expert opinion as far as the facts are concerned," clarifies Dr. Hall.

It goes without saying that retaining a forensic psychiatrist does not necessarily result in a victory for the defense. A credible and qualified expert, however, can offer counsel important and strategic information that can be used to provide a more comprehensive defense.