The treating physician as expert witness: ethical and pragmatic considerations

OBJECTIVE: The objective of this analysis is to apprise pain physicians of the ethical concerns and practical considerations that arise when a treating physician is called upon to testify as an expert witness in a legal proceeding involving his or her own patient. The provision of expert testimony in medico-legal proceedings has come under heightened scrutiny in recent years. When a physician testifies as an expert witness, such testimony is considered to be the practice of medicine, and hence subject to the same ethical and professional obligations as patient care. Increasingly, medical professional organizations have promulgated guidelines for such activities, and even implemented oversight mechanisms to review complaints concerning expert testimony by their members. Additional issues are raised when the expert witness is also the treating physician for the patient who is a party to the legal proceeding in which the expert testimony is offered. CONCLUSIONS: While it is not categorically unethical or inadvisable for a physician to testify as an expert witness in a medico-legal proceeding involving his or her own patient, such activity raises special issues and concerns. Prospective expert witnesses in such situations should be cognizant of these issues and insure that they have been adequately addressed before and during the testimony.     

Expert witness testimony: An update

This update provides an overview of the current state of expert witness testimony regarding malpractice cases. Many trials are reduced to a battle of the experts and many physicians advertise their credentials and expertise in hopes of attracting lucrative cases. This article focuses on what constitutes an expert witness, medical organizations oversight, the peer review process, and physician immunity.     

À propos des limites de l'expertise psychiatrique pénale des victimes

In legal proceedings the expert witness testimony may be considered a medical act only if the expert conducts his clinical observations within the limits established by the medical code of ethics. This will then allow the psychiatrist to help the judge reach a more informed legal decision. The difficulty inherent in this process is for the expert to give an exact answer (“yes” or “no”) to the questions formulated in order for the judge to arrive at an accurate decision. To better understand the evidence presented, the judge may ask empirical questions that require the expert witness to give testimony going beyond the information directly gathered through clinical observations. It is the expert witness' responsibility to determine what amount of interpretation of material drawn from a clinical observation is appropriate to help the judge make a legal decision. This requires defining legal standards such as credibility, truth, and suggestibility. One must also recognize that the clinical observation of a victim is often the person's first contact with a psychiatrist.     

Subjective complaints, psychiatric testimony, and attorney's tactics in handling an adverse witness

Summary The topic of subjective complaints vs. objective signs, when here considered by a lawyer and a psychiatrist working together, leads, not to a discussion of established textbooks, but logically leads to a discussion of daily courtroom dramas where the success or failure of many lawsuits depends on the ability of trial lawyers to withstand and destroy the devastating testimony of highly competent specialists whose opinions determine the crucial issues involved in the litigation.This discussion has been focused around actual court testimony concerning a defendant's medical witness and how the attorney attempted to discredit his testimony. The expert witness in a psychiatric case should be aware that opposing attorneys will show some familiarity and sophistication in the nomenclature of psychiatry as well as its content; that they will study the personality of the doctor; and that they may also be acquainted with his testimony in other cases to see whether he takes a constant line which, to them, exposes his own bias, stemming from his own personality.The objective sign to a large degree can be evaluated by objective examination. The subjective complaint is more complex. Not only must the doctor know the subjective complaints of various disease entities which are well known and well founded in medical experience, but he must also be constantly cognizant of the fact that subjective complaints are also evaluatedsubjectively by medical examiners, including himself. Therefore, one extra and pertinent factor enters the picture, and that is the basic personality of the individual who must make a judgment as to such complaints. The writers have, in this discussion, tried to bring out in an actual case history how such subjective factors on the part of the examiner may perhaps be indicated by his testimony, and have discussed what approaches might be tried by the trial attorney to demonstrate a bias in such a medical witness with the intent to discredit him before a jury. It is hoped that this presentation will help to prepare the doctor who, for good or for bad, must participate in helping a jury toward understanding the medical merits of the case on which it sits.     

Clinical practice guidelines as learned treatises: understanding their use as evidence in the courtroom

It is important for forensic experts to understand how clinical practice guidelines may enter the courtroom, what role they may play in a trial, and how they relate to expert testimony. Guidelines enter the record in several different ways and in several types of cases, typically with the assistance of an expert witness. A common vehicle for their introduction is the learned-treatise exception to the hearsay rule. Case law before and after Daubert v. Merrell Dow Pharmaceuticals, Inc. helps to elucidate the scrutiny that courts may direct toward medical texts proffered as evidence. This article discusses the implications of different rules and relevant case law for the forensic psychiatrist. The discussion notes important considerations for the expert witness, such as how guidelines may affect the expert's role, concerns about the reliability and relevance of scientific evidence, and questions about whether guidelines will be used for inculpatory or exculpatory purposes in medical malpractice trials.     

The effect of expert witness testimony and complainant cognitive statements on mock jurors’ perceptions of rape trial testimony

This study explores the influence on juror decision-making of expert witness and rape complainant testimony that explains a complainant's counter-intuitive behaviour. A total of 280 participants read a vignette of a date rape scenario containing one of four combinations of conditions: expert witness testimony present or not present and complainant's explanatory statement present or not present. No significant effects were found between conditions for defendant guilt likelihood and complainant credibility or blameworthiness, but the participants judged the defendant as more blameworthy when both the complainant's explanatory statement and the expert witness testimony were present. The participants’ qualitative responses about their reasoning suggest that they were more likely to use evidence-based reasoning in their judgements when expert witness testimony and cognitive statements were present. This emphasises the importance of police and prosecutors finding ways to mitigate the potentially detrimental effects of rape myths when gathering evidence and constructing a case.     

The presentation of forensic psychiatric evidence in court

After defining the role of expert witness, the article reviews the basics of courtroom testimony under the rubrics of (a) truth (presenting under oath only that testimony that one can "swear to," to a reasonable degree of medical certainty); (b) testing (including both psychological testing and tests to assess admissibility standards); and (c) theater (including elements of drama, solemnity, and ritual as well as persuasiveness to the "audience"). Pathways to effectiveness are discussed, including use of visual materials, adjustment of language level for the jury's comprehension and attention to the narrative dimension of the case. Areas of excluded testimony are identified, such as the "ultimate issue" in the case, comments on credibility of other witnesses and comments on the legal process itself. Pitfalls that lie on the path to effectiveness are described, including narcissistic arrogance, anger, and using testimony in a personal crusade; means of avoiding these pitfalls are noted. The author concludes that effective courtroom testimony fulfills expert witness functions necessary to the legal system.     

Neurolitigation: a perspective on the elements of expert testimony for extending the Daubert challenge

Scientific expert witness testimony has the potential for affecting most court decisions in civil and criminal proceedings. Since experts were first utilized in English courts beginning in the 14th century, most contemporary courts struggle with seeking a balance between plaintiff and defense counsel allowing each party its day in court while taking into account the work which other courts have done previously in determining the admissibility of expert witness testimony. When these challenges present themselves in the courtroom, often other courts have approached these identical issues, many in proceedings involving the same expert(s). Confronted with these challenges, trial judges want to understand whether a new Daubert hearing must be held, deal with the issue from a clean slate approach or whether they must reinvent the proverbial wheel. Given these dilemmas, this exposition is based within a heuristic approach that will focus on the consideration of comprehensive data inclusion from an evidentiary foundation as it applies to expert witness testimony admissibility in neurolitigation. While the evidential force of FRE 702 specifically applies to admissibility of scientific evidence, it makes sense that along with scientific, objective data, inclusion of non-medical and other data in forming and admitting expert opinions, have mutual bearing upon the validity of opinions arrived at through neuropsychological assessment. It is these multi-data that should be factored into account when applying the Federal Rule of Evidence 702 scientific admissibility standard. Data from other relevant sources is just as vital as data obtained from objective measures, and co-exists with objective data. Without the integration of this information into resulting diagnostic data and opinions, one's methodology is open to scrutiny and can willfully be characterized as engaging in "junk science". Specific, pragmatic issues are discussed in order to avoid the plausible "junk science" question and to ultimately arrive at a factual and evidenced-based admissibility and reliability determination for the courts. Given the current standard, this article proposes an inclusionary method in neurolitigation as it would necessarily apply to Federal Rule of Evidence 702 which would extend to the integration of data outside medical and scientific information bases to establish accurate opinions for the trier of fact. In so doing, neuropsychological test data, non-medical data and expert testimony would be strengthened through inter-data consistency.     

Expert Evidence and Jurors’ Views on Expert Witnesses

Jurors who had served on criminal trials associated with charges of sexual offences against children were asked about their views of expert evidence and in particular about the characteristics and behaviour of expert witnesses. Responses indicated that jurors welcomed and valued expert testimony, perceiving it as an opportunity to hear from someone neutral in the context of the adversarial process. Jurors were asked to describe the qualities of expert witnesses that gave credibility to their evidence. Relevant professional experience, lack of bias, and clarity of evidence were ranked in that order. Also relevant were the confidence and eye contact of the expert witness with the jury, followed by the academic qualifications of the expert. These results have implications for the selection and training of expert witnesses and the admissibility of their proposed evidence.     

Science and ethics, therapeutic misconception and mirage

Medical practice changes constantly. Ethical imperatives are however incorrigible. How can we reconcile ethics, practice and progress? Some bioethicians argue that research and care should be disentangled to minimize the 'therapeutic misconception', a clinical propensity to believe that patients are the object of medical care, while in fact they are the subjects of a scientific experiment. On the contrary, we believe that clinical research should be an integral part of the good practice. A divorce between research and clinical practice leads to an incorrigible medicine, liable to the therapeutic mirage, that is the false belief that everything modern medicine can offer has been proved beneficial. But both therapeutic misconception and mirage are possible because of a misunderstanding of either research or clinical practice. In this essay we review ethical principles behind clinical trial methodology and attempt to reconcile ethics, science and clinical practice. Not only should clinical research be integrated to the good practice of medicine, it should also be part of training in our specialty.     

Antecedents,Behaviours, and Court Case Characteristics and Their Effects on Case Outcomes in Litigation for Persons with Schizophrenia

A 10% random sample of 3543 cases litigated in the United States’ civil and criminal courts were analysed using logistic regression to develop a model that can predict case outcomes for litigants with schizophrenia. Most predictors are related to case characteristics and not to the litigants’ antecedents, behaviours or medication issues. Only the psychologist as an expert witness was found to be related to case outcome, but the concern is expressed that inadequate weight is given to expert testimony. Other significant findings include being represented by counsel, atypical medication and malingering.     

Oral performance, identity, and representation in forensic psychiatry

The specialty of forensic psychiatry is advancing in practice and in its scholarship. One task for an evolving discipline is to define and master the nature of its work. In this article we assert that the work of testifying in court is more than the sharing of specialized knowledge. It is performance. Anthropology, religious studies, political science, and psychology (among other disciplines) have investigated elements of face-to-face human interaction set within ritual and credentialed it as worthy of attention and belief. Such is the nature of expert testimony within forensic psychiatry. This is our position, but we also consider well-founded concerns about the ethics of highlighting oral performance. These topics emphasize the need for the discipline to recognize the unique nature of testimony, to master the work and control standards that assure excellence and ethics-based practice.     

Memory as power: who is to decide?

The transactional aspects of human memory remain enigmatic: memory disputes carry intense affective charge; memory's effects vary with how content is framed or slanted by one's perspective; memory is vulnerable to suggestive influence; and these processes are seen at all levels of social scale from simple dyads to whole societies. These observations suggest that memory serves important functions in mediating interpersonal relationships. As hypotheses for further study, I propose that (1) memory mediates interpersonal power dynamics; (2) social legitimization countermands memory's truth value when the two conflict; (3) suggestibility protects otherwise disadvantaged individuals by rendering them more adaptable to dominant others' belief systems; and (4) mutual suggestion ties together all levels of scale within a given society. All of these hypotheses are discussed within a context of recent controversies surrounding hypnotically refreshed eyewitness testimony and adult delayed traumatic recall, which are worked out at the intersection of mental health and legal practice with a pivotal role given to the expert witness. The presumption of innocence dominates current trends in these areas. Cases that appear to violate this presumption, such as Pennsylvania v. Crawford (718 A.2d (Pa. 1998)), affirm another fundamental principle of democracy: that the ultimate issue of witness credibility is to be decided not by an expert, but by the citizenry itself-as represented in the jury.     

From mental health professional to expert witness: testifying in court

Our democratic principles rest on the belief that truth is discovered through the fair and open combat of ideas in a court of law. When mental health professionals participate in this adversary process as expert witnesses, it is essential for them to understand that attorneys will attempt to impeach their credibility. Mental health professionals who appreciate the spirit and mechanics of courtroom communication will be best prepared to protect the integrity of their testimony. The courtroom communications model provides experts with a conceptual framework utilizing three components: the speaker is the expert, the message is testimony, and the audience is the judge or jury. Within the structure of this model, communication principles from social psychology can be used to enhance the clarity of testimony and to prevent attorneys from distorting the expert's opinions. First and foremost, expert witness testimony must be formulated on accepted scholarly and ethical standards. To establish credibility, experts must appear knowledgeable and trustworthy to the judge and jury. The expert must come to court prepared for both direct examination and cross-examination, know when to emphasize logic or emotion, tailor speech in order to reach the maximum number of jurors, and remain nondefensive by projecting the same demeanor regardless of which side is conducting the examination. The role of the expert witness is forever changing because the judicial system--like the mental health field--continues to evolve. Although the adversary process has undergone dramatic changes over the past eight hundred years, historical vestiges continue to echo throughout our courtrooms. Today expert witnesses are the champions of both victims and the accused. Legal disputes are increasingly being decided by the battle of the experts, who must undergo the ordeal of cross-examination. When you consider the brutality of ancient ordeals, responding to attorneys armed with questions may not seem so daunting.     

Conducting forensic examinations on the road: are you practicing your profession without a license?

Psychiatrists and other mental health professionals retained in civil or criminal litigation are frequently required to travel to a state in which they are not licensed to perform assessments and offer testimony. Adverse professional and legal consequences may await the unwary peripatetic forensic expert. Failure to address local practice requirements may result in disqualification to testify as well as civil and criminal liability, professional disciplinary action, and denial of liability insurance coverage. In this article, the authors address preventative measures to avoid charges of practicing without a license when the forensic expert crosses state lines.     

Forensic psychiatry and political controversy

This article gives a U.K.-based perspective on the involvement of forensic psychiatry organizations in questions of political controversy. Medical professional bodies are fundamentally concerned to uphold good standards of clinical practice and patient welfare, and to uphold professional medical ethics. In our specialty, when acting as individual expert witnesses, we seek to serve the courts with objectivity and respect for the law. However, as members of our professional bodies we have a legitimate medical concern about how the law affects the mentally disordered as a class. We should articulate a collective view about what treating the mentally disordered justly and appropriately in the legal system means and should challenge the law when it fails to achieve this.     

Confessions and expert testimony

In this clinical paper, the author discusses criminal confessions from the point of view of the expert witness who may be asked to comment on the reliability of the statement and waiver of rights. From the time a suspect is in police custody, constitutional protections against self-incrimination and for due process are in place. The Supreme Court set the standard for these situations in the 1966 Miranda v. Arizona decision. Although it has long been criticized by law enforcement, the decision was upheld in the 2000 decision in Dickerson v. U.S. For a waiver of rights to be valid, it must be a knowing, intelligent, and voluntary decision. Voluntariness is an equation of objective and subjective variables. Treatment by police, physical conditions of interrogation, the suspect's experience and mental state can alter the reliability of a confession. Accordingly, the author has devised a mnemonic for the recognition of conditions that may give rise to expert testimony. The conditions are: Mental illness, Intoxication, Retardation, Acquiescence, Narcotic withdrawal, Deception, and Abuse. These are discussed, supported by examples from the author's practice.     

Juror perceptions of false confessions versus witness recantations

In false confessions, someone confesses to a crime but then later retracts that confession, whereas in witness recantations, an eyewitness testifies but then later revokes that testimony. The revocations are conceptually similar, but they differ in the author of the revocation – the defendant versus a third party. The current study examines differences in juror perceptions of the legitimacy of false confessions versus witness recantations, and also takes contextual influences (coercion and crime severity) into account. False confessions were found to be judged more harshly than witness recantations, but, surprisingly, levels of coercion and the severity of the crime did not influence decision-making in the manner that the original hypotheses predicted. Implications for the application of this research are discussed.     

Legal Representatives’ Opinions regarding Psychologists Engaging in Expert Witness Services in Australian Courts and Tribunals

Legal representatives engage psychologists to provide expert witness opinions about a number of factors, including the psychological factors that may have contributed to the perpetrator's behaviour and the likelihood of reoffending. Although this evidence can affect the outcome of proceedings, little is known about how the experts who provide it are chosen or about the quality of their services. This paper explored legal representatives’ reasons for engaging psychologists as expert witnesses, how they choose these experts, and their opinions about the expertise provided. Questions were also asked about the features of good and poor written and oral expert testimony. The results show that the majority of legal representatives engage psychologists who are usually chosen through referrals from colleagues and others. The legal representatives in the present sample had little awareness about the different backgrounds of experts (e.g. clinical vs forensic psychology). These results have implications for psychologists who provide expert evidence and the legal representatives who engage them.