Psychologists as Expert Witnesses in Australian Courtrooms

Mental health professionals assist Australian courts and tribunals with explanations about human behaviour and mental processes related to offending behaviour. Contrary to other witnesses who are only allowed to give evidence in relation to what they directly heard or saw, mental health professionals are allowed to express opinions because they are recognised as expert witnesses with specialised knowledge. However, in Australia at least, little is known about how these expert witnesses are chosen and how they meet the requirements of possessing “specialised knowledge”. In this article, we provide a brief history of expert witnesses in the courtroom, including the use of psychologists as expert witnesses. We then highlight some of the concerns that legal professionals have raised about psychologists as expert witnesses in the limited number of studies that have been conducted in Australia, the United States, and the United Kingdom. Finally, we raise questions about how psychologists are chosen to be expert witnesses in Australia and introduce directions for future research.     

Evidence-based medicine and medicine-based evidence: the expert witness in cases of factitious disorder by proxy

The UK media has recently devoted much attention to the role of expert witnesses in child protection cases. One or two particular pediatricians who have given expert testimony have been the subject of personal vilification and professional investigation. These cases raise questions about the use of medical expert testimony when there is real uncertainty in the scientific community and the emotional stakes are high. Do doctors use scientific evidence to make diagnoses in the same way that the courts use evidence to make judgments? The cases also raise questions about the personal credibility and trustworthiness of experts: should we allow ourselves to be seen as personally powerful witnesses? Are we responsible for how we are seen by the jury? In this article, these questions are addressed, with the conclusion that distress and anxiety about child maltreatment influences all the players in the justice process and may interfere with the process of justice.     

Counterintuitive Expert Psychological Evidence in Child Sexual Abuse Trials in New Zealand

The Evidence Act 2006 came into law in New Zealand in 2007. Among the many reforms was an amendment to the law pertaining to expert opinion evidence. In keeping with other jurisdictions, New Zealand adopted the “substantial helpfulness” test in relation to the admissibility of expert evidence. Since 2008, the courts have regularly admitted what has been termed “counterintuitive” expert psychological evidence in child sexual abuse trials, and appellate courts have upheld the use of this evidence. Such evidence has the purpose of educating juries, with particular reference to commonly held misconceptions about child sexual abuse. We discuss what is meant by the term counterintuitive evidence, why such evidence has been deemed helpful and the types of counterintuitive evidence currently given by psychologist expert witnesses in the New Zealand courts.     

Investigative interviewing: Recent developments and some fundamental issues

This paper reviews some fundamental issues about the nature, methods and consequences of investigative interviewing. Recent legal developments in England have led to improved protection for suspects who are detained for interviewing at police stations as well as improved interviewing techniques can have negative consequences, including false confession, the undermining of public confidence in the criminal justice system, resentment and hostility among defendants, post-traumatic stress disorder, and confessions being ruled inadmissible in court. The author argues that there is a fine balance facilitating the duties of the police to prevent and investigate crimes and answering the needs and protecting the rights of suspects and witnesses.     

Psychiatry malpractice and administrative inquiries of alleged physician misconduct.

Practicing psychiatrists face a range of professional liability from malpractice litigation and from inquiries and hearings conducted by health care agencies. The causes of an action and the standards by which physician conduct is measured vary widely between these two processes. Many psychiatrists do not appreciate sufficiently the gravity of the risks they may face from an administrative sanction. Understanding the legal and administrative expectations of practicing psychiatrists serves practitioners' professional risk management.Those psychiatrists who choose to participate as expert witnesses for courts or administrative agencies need to familiarize themselves with the applicable legal standards and the respective roles of experts in these two different settings. The courts and administrative agencies have different social missions and correspondingly differing expectations of the expert opinions admitted.An expert's function as educator about the application of psychiatric knowledge and treatments to legal contexts is optimized when that expert clearly understands the function of the opinion that is sought. As educators about special knowledge to the adjudicating body, experts are advocates for their objectively generated and scientifically grounded opinion.Psychiatry is increasingly under the purview of regulations from multiple sources private and public. This article has reviewed medicolegal concepts and terms of psychiatrists' exposure to liability from a comparative point of view. Familiarity assists psychiatrists in navigating the complex legal arena in which they practice and provides a foundation for psychiatrists to work to change the multitude of laws and regulations when doing so is in the best interests of their patients and of their discipline of medicine.     

Coexistence of schizophrenia and epilepsy: record-linkage studies

For many years, there has been interest in a possible link between epilepsy and schizophrenia. A recent study found a strong, bidirectional link between the two conditions: people with one had a higher than average risk of having the other. Using two large data sets of hospital admission data, we investigated whether schizophrenia and epilepsy occur together in individuals more commonly than expected by chance. We undertook a retrospective cohort study using the Oxford Record Linkage Study (ORLS) and English national linked Hospital Episode Statistics to investigate the coexistence of these conditions. There was an elevated risk of epilepsy in people admitted to hospital with schizophrenia (ORLS rate ratio 2.1, 95% confidence interval 1.6-2.6; England 3.0, 2.9-3.1) and an elevated risk of schizophrenia in people admitted to hospital with epilepsy (ORLS 5.1, 4.1-6.2; England 4.5, 4.3-4.6). We found no consistent difference between male and female patients. Schizophrenia and epilepsy occur together in individuals more frequently than expected by chance.     

Post-traumatic epilepsy: an overview

Post-traumatic epilepsy (PTE) is a recurrent seizure disorder secondary to brain injury following head trauma. PTE is not a homogeneous condition and can appear several years after the head injury. The mechanism by which trauma to the brain tissue leads to recurrent seizures is unknown. Cortical lesions seem important in the genesis of the epileptic activity, and early seizures are likely to have a different pathogenesis than late seizures. Anti-epileptic drugs available for treatment are phenytoin, sodium valproate, and carbamazepine. Newer anti-epileptics are helpful, particularly in patients with associated post-traumatic stress disorders; however, no randomized controlled studies are available to prove that one of these drugs is better than the other. Current evidence is that the treatment of early post-traumatic seizures does not influence the incidence of post-traumatic epilepsy. Routine preventive anticonvulsants are not indicated for patients with head injuries, and treatment in the acute phase does not reduce death or disability rates.     

Epilepsy Related to Traumatic Brain Injury

Post-traumatic epilepsy accounts for 10–20 % of symptomatic epilepsy in the general population and 5 % of all epilepsy. During the last decade, an increasing number of laboratories have investigated the molecular and cellular mechanisms of post-traumatic epileptogenesis in experimental models. However, identification of critical molecular, cellular, and network mechanisms that would be specific for post-traumatic epileptogenesis remains a challenge. Despite of that, 7 of 9 proof-of-concept antiepileptogenesis studies have demonstrated some effect on seizure susceptibility after experimental traumatic brain injury, even though none of them has progressed to clinic. Moreover, there has been some promise that new clinically translatable imaging approaches can identify biomarkers for post-traumatic epileptogenesis. Even though the progress in combating post-traumatic epileptogenesis happens in small steps, recent discoveries kindle hope for identification of treatment strategies to prevent post-traumatic epilepsy in at-risk patients.     

Court diversion in perspective

Court diversion schemes have been running for a decade in New Zealand and are increasing in number in Australia. This paper aims to give an international and historical context to these developments, by reference to psychiatric initiatives at courts in the US and in England and Wales. From a review of the specialist literature, an account is given of three forms of psychiatric intervention in courts over the last 90 years: court psychiatric clinics and mental health courts in the US, and court diversion schemes in England and Wales. High levels of psychiatric morbidity among prisoners, coupled with a continuing increase in prisoner numbers, demonstrate the need for systems for dealing with mentally ill people who come before the courts. Court diversion in England and Wales developed as part of a system where the mentally ill who are found guilty are sent to hospital in lieu of any other sentence. Its focus is on a form of psychiatric triage, and its ethos is the health of the patient. Court psychiatric clinics in the US grew up as an alternative to assessment in prison. Their focus has been on full psychiatric evaluation in an insanity and incompetence jurisdiction. The ethos has been that of serving the court. Mental health courts are heavily influenced by ideas of therapeutic jurisprudence, and their emphasis has been on a judge holding minor offenders in community care through the threat of judicial sanction. Experience in England and Wales has shown that court diversion can be a powerful and effective intervention. In order for it to function properly, those running court schemes need direct admission rights to psychiatric beds, both open and locked. Court diversion schemes are best as part of a spectrum of services to police stations, courts and prisons, which involved both general and forensic psychiatrists.     

Liability for the psychiatrist expert witness

OBJECTIVE: An increasing number of general psychiatrists are acting as expert witnesses in the legal system. The purpose of this article is to help psychiatrists who are interested in doing forensic work by informing them of the risks entailed. METHOD: The author reviews the medical and legal literature about expert witness immunity. RESULTS: The author explains the traditional concept of expert witness immunity and shows how a variety of factors have led to the erosion of this immunity. These factors include the proliferation of experts, the inadequacy of traditional safeguards of potential prosecution for perjury and cross-examination, the growth of attorney malpractice, the lack of protection of the injured party from unscrupulous witnesses, and the ineffectiveness of Daubert v. Merrell Dow Pharmaceuticals. Examples are given of how expert witnesses are being held accountable by professional associations and state medical boards and through tort liability. CONCLUSIONS: The author provides risk-management strategies and guidelines for psychiatrists who are considering engaging in forensic work.     

外伤后癫痫的皮质脑电图监测手术

目的:探讨外伤后癫痫皮质脑电图监测的手术疗效。方法:16例外伤后癫痫病人实施皮质脑电图监测下手术治疗。结果:16例随访1～7年(平均随访4年3个月),手术有效率达86％。本文还对外伤后癫痫的病因、病理、发病率、手术适应证及术后治疗原则进行了较详细的讨论。结论:采用皮质脑电图监测下行手术治疗外伤后顽固性癫痫是一安全、有效的方法。     

The Department of Health Action Plan “improving services for people with epilepsy”: a significant advance or only a first step?

The government in England has supported the production of a number of reports on services for people with epilepsy over the last three or four decades but these have not come with any promise to provide resources or to achieve change. In recent years, the voluntary agencies have worked with government in undertaking some very worthwhile initiatives. The publication of the audit on epilepsy-related deaths and the commitment of the Chief Medical Officer have led to the production of an Action Plan entitled "Improving Services for People with Epilepsy". This Plan covers many of the key issues in the management of epilepsy and is seen as an important first step towards actual improvement of services. There is certainly a consensus that improvement is necessary with too many people receiving inadequate diagnosis and management leading, in some cases, to avoidable morbidity and mortality. A critical overview of the Action Plan and a suggested 10-point model Action Plan are presented. Whether the further necessary steps following the Department of Health Action Plan will be taken, remains to be seen. All those responsible for the management and wellbeing of people with epilepsy very much hope that the required measures will be taken to ensure significant long-term improvements in services.     

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 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.     

Low risk of late post-traumatic seizures following severe head injury: implications for clinical trials of prophylaxis.

A randomised, controlled, double-blind clinical trial designed to determine the effectiveness of phenytoin in preventing epilepsy in patients who had suffered a serious head injury is reported. One hundred and sixty-four patients were randomly assigned to treatment with phenytoin or placebo capsules for one year. Patients who had a fit within one week of injury were excluded. Drug levels were monitored throughout with appropriate dosage adjustment; however only 48% of the phenytoin group had plasma levels greater than 40 mumol/l. There were seven deaths during the study. Only 11 patients (six in the phenytoin group and five in the placebo group) developed post-traumatic epilepsy within one year; a further four patients developed seizures between 1 and 2 years after injury. This low incidence of post-traumatic epilepsy (7% (SE 2%) at one year and 10 (SE 2%) at two years) means that future clinical trials of prophylaxis will have to be much larger (at least six fold).     

Psychology brings justice: the science of forensic psychology

In this paper the focus is on one aspect of forensic psychology: the development of psychological instruments, a social psychological model and assessment procedures for evaluating the credibility of witnesses and police detainees during interviewing. Clinically grounded case work and research has impacted on police interviewing and practice, the admissibility of expert psychological testimony and the outcome of cases of miscarriage of justice. After describing the research that laid the foundations for advancement of scientific knowledge in this area, a brief review is presented of 22 high-profile murder cases where convictions based on confession evidence have been quashed on appeal between 1989 and 2001, often primarily on the basis of psychological evidence. The review of the cases demonstrates that psychological research and expert testimony in cases of disputed confessions have had a profound influence on the practice and ruling of the Court of Appeal for England and Wales and the British House of Lords. The cases presented in this paper show that it is wrong to assume that only persons with learning disability or those who are mentally ill make unreliable or false confessions. Personality factors, such as suggestibility, compliance, high trait anxiety and antisocial personality traits, are often important in rendering a confession unreliable. Future research needs to focus more on the role of personality factors in rendering the evidence of witnesses and suspects potentially unreliable.     

Interactions of epilepsy and psychiatric problems: life-threatening situations

Epilepsy and psychiatric problems can occur simultaneously and can, quite unexpectedly, trigger interactions that may lead to life-threatening situations. This became obvious in the case of a female patient who suddenly developed a status epilepticus while admitted to hospital. The seizure was probably connected with secret self-induced vomiting which led to a low intake of antiepileptic medication. She used the vomiting to control emotionally charged post-traumatic intrusions. Both the vomiting and the number of seizures were triggered by a life event (in this case emigration). In case of epilepsy, early screening for psychopathology seems advisable because there may be interactions with epileptic variables.     

A Case Concerning Children's False Memories of Abuse: Recommendations Regarding Expert Witness Work

Expert witnesses can play a major role in legal cases concerning the reliability of statements. Abuse cases frequently contain only the memories of eyewitnesses/victims without the presence of physical evidence. Here, it is of the utmost importance that expert witnesses use scientific evidence for their expert opinion. In this case report, a case is described in which 20 children reported being sexually abused by the same teachers at their elementary school. The investigative steps that were taken by the police and school authorities are reviewed, including how they probably affected memory. In order to provide a sound expert opinion regarding the reliability of these statements, three recommendations are proposed. To reduce the effect of confirmation bias and increase objectivity, it is argued that expert witnesses’ reports should contain alternative scenarios, be checked by another expert, and focus on the origin and context of the first statement.     

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.     

Vivid recollection of a past traumatic event: a rare manifestation of temporal lobe seizures

Vivid recollection of a particular past memory is a rare ictal phenomenon in temporal lobe epilepsy. When the memory is traumatic, the presentation may mimic post-traumatic stress disorder (PTSD). We report a woman with temporal lobe epilepsy who was misdiagnosed with post-traumatic stress disorder for two years before she had a suspected generalised seizure; video-EEG monitoring confirmed that her episodes were epileptic. Adequate treatment with an antiepileptic medication resulted in total resolution of the episodes.