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Psychology in the Courtroom
CRITICAL ISSUES AND CONTROVERSIES
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Presenters

Pamela Auble, Ph.D., ABPP

Michael Engle, J.D., Esq.

Scott Gale, Ed.D.

Julie Gallagher, Ph.D., ABPP

Karen Milliner, Psy.D.

James S. Walker, Ph.D., ABPP

Shannon Walker, J.D., Esq.
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Clinical and Forensic Psychology:
Contrasting Roles
CONFLICTS AND CRITICAL DIFFERENCES
Karen Milliner, Psy.D.
Scott Gale, Ed.D.
Initiating the services

Meeting the client

Introducing the process

Obtaining informed consent

Explaining the limits of confidentiality

Establishing rapport

Engaging the client
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Engaging the client

Empathizing with the client
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Validating the client’s perspective
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Approaching the client with neutrality

Detaching from the client’s story
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Setting the parameters of the relationship
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Clarifying the purpose of the relationship
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Identifying the client

Helping the client

Helping the court

Identifying the client

Addressing the referral questions
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Allowing the client to lead the conversation
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Imposing structure on the interaction
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Examining the client

Collecting information about the client

Interviewing the client

Assessing for mental illness

Focusing on the specific mental capacity
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Capturing precise information

Capturing sufficient information
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Gathering information

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Including collateral sources of information
Actively seeking information
Carefully reviewing records

Seeking objective and subjective information
Corroborating the client’s story
Substantiating clinical findings
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Exploring alternative explanations
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Analyzing information

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Relying solely on self-report
Assessing the accuracy of information
Critically analyzing information
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Scrutinizing collateral information
Assuming the accuracy of records
Assuming the accuracy of others’ reports
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Considering information objectively
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Arriving at conclusions
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Considering secondary gain
Assessing response style
Approaching cases consistently
Approaching cases impartially
Clinical decision making
Needing specialized knowledge
Communicating findings
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Suggested reading and references
American Psychological Association. (2013). Specialty Guidelines for Forensic Psychology.
American Psychologist, 68, 7-19.
Goldstein, A. M. (Ed.). (2003). Handbook of psychology: Volume II Forensic psychology.
Hoboken, New Jersey: John Wiley & Sons.
Goldstein, A. M. (Ed.) (2007). Forensic Psychology: Emerging Topics and Expanding Roles.
Hoboken, New Jersey: John Wiley & Sons.
Greenberg, S. & Shuman, D. (1997). Irreconcilable conflict between therapeutic and forensic
roles. Professional Psychology: Research and Practice, 28, 50-57.
Greenberg, S. & Shuman, D. (2007). When worlds collide: therapeutic and forensic roles.
Professional Psychology: Research and Practice, 38, 129-132.
Melton, G. B., Petrila, J., Poythress, N., & Slobogin, C. (2007). Psychological evaluations for the
courts: A handbook for mental health professionals and lawyers (3rd ed.). New York, NY:
Guilford Press.
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Conflicting Roles
PRESERVING YOUR INTEGRITY
James Walker, Ph.D.
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What’s a Forensic Psychologist For?

FRE 702 “expert testimony must be ‘based upon sufficient facts or data,’
must be ‘the product of reliable principles and methods,’ and must be
offered by a witness who has ‘applied the principles and methods reliably
to the facts of the case.’”

Daubert v. Merrill Dow Pharmaceuticals
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In Tennessee, McDaniel v. CSX Transportation
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Cases provide basis for a “helpfulness standard”

Expert’s job is to educate the court
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Information must be based upon sound scientific data and principles
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McDaniel v. CSX Transportation
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Whether the scientific evidence has been tested and the methodology
with which it has been tested.
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Whether the evidence has been subjected to peer review or publication.
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Whether a potential error rate is known.
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Whether the evidence is generally accepted in the scientific community.

Whether the expert’s research in the field has been conducted
independent of litigation.
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(Physicians excepted)

T.C.A.Sec. 24-7-115

"In the trial of any civil suit, there shall be received in evidence if offered
on behalf of any party thereto, opinions as to medical findings as a result
of treatment or examination of the party, whether such opinions are
based on subjective or objective findings; provided such opinions are
those of persons otherwise qualified as medical experts. It is declared to
be the intent of this section that medical opinions based on subjective
findings are no longer to be excluded from evidence whether the opinion
is from the treating expert or an expert called in for purposes of
examination and evaluation."
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Possible Roles for the Psychologist

Evaluating Expert

Subsequent Evaluating Expert

Reviewing Consultant

Consultant Advocate

All “hired guns”
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Is it ever acceptable to combine roles?
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Dangerous Ground

Prepping litigants for testing
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Serving as a jury consultant (if already an expert)
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Testifying only on one side of an issue
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Suppressing data
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Cherry picking data
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Offering conflicting opinions in different cases
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Assassinating other professionals’ characters
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Accepting cases on contingency

Entering any advocacy role
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Avoiding Ethical Conflicts

Maintain your principles

Never, ever, view yourself as an advocate for one side

Your side is the truth

Be honest

Protect testing information and procedures
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Always be willing to share data
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Always be willing to meet with the other side if permitted
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Be empathetic will everyone
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Avoid sympathetic identification
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Unprincipled hired guns
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Consistently testify for one side (without good reason)

Money trumps the truth
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Tests are chosen based on bias (15 Item, TOMM, MCMI, NEOPI-R)

Only supportive data is cited or mentioned
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Are concerned about the attorney’s favor
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Won’t answer direct questions on cross
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Are a blight on our profession and the justice system
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Principled hired guns
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Are pains to work with (“It’s not my problem”)

Prepare well
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Answer questions truthfully
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Consider all the data

Avoid sympathetic identification with anyone
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Will share information with anyone, anytime, anywhere if permissible (including
raw test data)
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Say “I don’t know” if they don’t
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Include both confirmatory and contradictory information in their reports

Are always busy
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Principled Report Writing

Be timely with your reports

Be willing to write a report for both sides and the court, if requested

Agree on report format, and stick to it

Be willing to alter your reports or produce an addendum if you made an
error
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Avoid altering conclusions
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Include appropriate information; don’t include inappropriate information

Provide both confirmatory and contradictory evidence
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Offer firm conclusions whenever possible, and don’t change them
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Forming and explaining conclusions

Conclusion: Mr. A represents a low risk for future sexual violence

Information in support: Mr. A has no prior convictions, no history of
nonsexual violence, no history of stranger victims, no history of unrelated
victims, no history of male victims, has been married for 28 years, is over
the age of 25, has no serious mental illness, and is presently cooperating
with treatment
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Negative information: Mr. A has a substance abuse problem, has a history
of a serious head injury, and runs a hobby store where children are often
present
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STATIC – 99 calculations show that he is a low risk for future offending
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Forming and explaining conclusions
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Conclusion: Mr. B is not fit for duty
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Negative information: Mr. B has worked at his job successfully for the past
16 years, he has several certifications, he has a college degree in the
field, and he is very motivated to do a good job. He has been devastated
by his employer’s suspension of him
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Positive information: Mr. B achieved a scaled score of 62 on the Wechsler
Memory Scale Delayed Memory Index, was unable to achieve any
categories on the Wisconsin Card Sort, and IQ testing suggests a 10 point
decline. Family report severe day-to-day memory difficulties. He has early
Alzheimer’s disease, and will only get worse with time.
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Forming and explaining conclusions
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Conclusion: Mr. C was not able to premeditate the killing of his stepson.
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Negative information: He has average IQ, is college-educated, is
normally capable of good reasoning and planning skills, and the day prior
to the offense had remarked to his work associates that he “wanted to
kill” his stepson.
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Positive information: At the time of the offense, Mr. C had consumed half
a fifth of vodka in less than 2 hours’ time, was enraged to learn that his
stepson had wrecked his vehicle, and had been struck three times in the
head by his stepson with a hammer
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Conclusions
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There is nothing inherently evil or mercenary about forensic consulting or
the justice system
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The justice system needs us
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Biased experts are a real problem
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The law and psychology speak different languages; if you choose to be a
forensic consultant, you have to learn both
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Delineate roles openly and formally whenever necessary
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Whatever role you find yourself playing in the forensic world, stick by your
principles, and all will be well
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Forensic Controversy:
Expert Testimony
THE ‘ULTIMATE ISSUE’ ISSUE
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Forensic Controversy:
Expert Testimony
The ‘Ultimate Issue’ Issue
Julie A. Gallagher, Psy.D. ABPP
Board Certified in Forensic Psychology
[email protected]
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What is an Ultimate Opinion?

Levels of Inference
1.
Relationship of your clinical formulation or diagnosis to the legally
relevant behavior
2.
Elements of the ultimate legal issue (penultimate opinion)
3.
Ultimate legal issue

Embraces society’s values & moral judgments
ABA Criminal Justice Standard 7-3.9:
The expert witness should not express, or be permitted to express, an
opinion on any question requiring a conclusion of law or a moral or social
value judgment properly reserved to the court or the jury.
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What is the standard of practice?

Most legal and psychological commentators are against giving
ultimate opinions

Morse (1978)

Heilbrun (2001)
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Grisso (2003)

Melton et al. (2007)
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Specialty Guidelines neither endorse nor prohibit
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Borum & Grisso (1995) survey:

Only 20% of those surveyed thought ultimate opinions did not belong in criminal
forensic reports
Federal Rules of Evidence
Rule 704
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a)
Except as provided in subdivision (b), testimony in the form of an
opinion or inference otherwise admissible is not objectionable because
it embraces an ultimate issue to be decided by the trier of fact.
b)
No expert witness testifying with respect to the mental state or condition
of a defendant in a criminal case may state an opinion or inference as
to whether the defendant did or did not have the mental state or
condition constituting an element of the crime charged or of a defense
thereto. Such ultimate issues are matters for the trier of fact alone.
Tennessee Rules of Evidence
Rule 704

Testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of
fact.
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T.C.A. § 39-11-501: “No expert witness may testify as to
whether the defendant was or was not insane.”
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Argument Against
“Even if a court permits such an opinion
to be admitted as a matter of law, it
should not be offered as a matter of
professional ethics because of the explicit
or implicit misrepresentation of the limits
of expertise involved when a clinician
acting as an expert witness gives a legal
opinion in the guise of mental health
knowledge.” (Melton et. al. 2007)
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Argument Against

APA Ethics Code


Principle A: Beneficence and Nonmaleficence
Forensic Specialty Guidelines

11.02 Differentiating Observations, Inferences, and Conclusions

In their communications, forensic practitioners strive to
distinguish observations, inferences, and conclusions. Forensic
practitioners are encouraged to explain the relationship
between their expert opinions and the legal issues and facts of
the case at hand.
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Argument For

Research indicates that most judges and attorneys prefer conclusory
testimony

Rogers & Ewing (1989 & 2003) – unintended consequences to avoiding
ultimate opinions

Obfuscates the expert’s data

Results in expert testimony that is too broad and not relevant to the
legal issue
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Makes cross-examination more difficult
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Provides greater opportunity for attorneys to distort testimony

Loss of the distinction between clear cut cases and borderline ones
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Levels of Inference

Examples from Clark v. Arizona:
1.
Mr. Clark believed that the police officers were aliens and
the only way to stop them was with bullets. Thus he did not
understand that he was shooting a human being.
2.
Mr. Clark was suffering from a severe mental disease and
could not appreciate the wrongfulness of his conduct.
3.
Mr. Clark was insane at the time of the crime.
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What if it is demanded?
“It should be described as a legal, moral or
common-sense judgment, not a psychological
one.” (Melton et al)
My ultimate opinion on the ultimate
opinion…


Whatever form of opinion statement you use, you
should clearly describe:
1.
The data on which your opinion is based
2.
The logical inferences that link your data to your
opinion
Always show your work
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Being an Effective Expert Witness
PAMELA AUBLE, PH.D.
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Perceptions of Experts

Jurors often see lay witnesses as more credible than
experts
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Demeaning statements regarding mental health
experts by attorneys and judges

Experts for sale (“hired guns”)
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Experts as biased (“partisans, advocates”)
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Experts as advocating junk science (“voodoo
psychobabble”)
What makes an expert believable?
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Character
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Credibility factors
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Nice Person
Efficacy
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Poise and confidence
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Extraversion
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Communication style
Only Character influenced juror decisions
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Demeanor
 Dress
 Posture
 Do
and body language
not just look at questioner
 Never
show anger
 Gentle
and rare humor
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Communication
 Use
of jargon
 Audio
visual aids
 Saying
you don’t know
 Thoughtful
responses
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Preparation
 Review
your file
 Relevant literature
 Organize your file
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Direct examination

Meet or talk with the attorney who is doing your
examination

Watch out for undue influence
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Limits of testimony
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Ensure understanding of relevant legal issues
and their application

Communicating qualifications
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Cross examination
 Teaching
 Pacing
responses
 Honesty
 This
metaphor
and responsiveness
is not about “winning”
 Dealing
with personal attacks
Response techniques
 Discussed
by Stanley Brodsky, Ph.D.
 Admit-deny technique
 Push-pull technique
 Silence
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Mock Court Appearance
MARK PHILLIPS, PH.D.
MIKE ENGLE, J.D.
SHANNON WALKER, J.D.
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Psychology in the Courtroom