Ask the Expert
The Role of a Forensic Psychiatrist in Legal Proceedings
Harold J. Bursztajn, M.D.
Dr. Harold J. Bursztajn, Associate Clinical
Professor and Co-Director, Program in
Psychiatry and the Law, Harvard Medical School at the Massachusetts
Mental Health Center, practices both as a clinician and as a forensic
psychiatrist consulting to attorneys and institutions.
What is a forensic psychiatrist?
A forensic psychiatrist is a medical doctor with, first, the additional
training of a psychiatrist, and then with special training and experience
(forensic) in the application of psychiatric knowledge to questions posed
by the legal system. A forensic psychiatrist may also have a clinical
practice. However, when acting in the capacity of a forensic specialist,
he or she is not providing therapy to alleviate the patient's suffering
or to help the patient be free and healthy, but an objective evaluation
for use by the retaining institution, attorney, or court.
What kinds of determinations do forensic psychiatrists make in civil
Forensic psychiatrists are involved in a range of particularized competency
determinations, including the competence to make wills, dispose of property,
or refuse medical treatment. In custody disputes they may be called upon
to assess how autonomous and authentic the expressed wishes of a child
of a certain age can be. They evaluate and testify in cases of alleged
emotional harm and Post-Traumatic Stress Disorder (PTSD). Here it is
necessary to reach a deep understanding of the person's life history,
so as to identify prior experiences that may have created a special vulnerability
to trauma (as opposed to prior impaired functioning), as well as to distinguish
genuine trauma from faking, malingering, exaggerating, or misattributing.
Forensic psychiatrists are involved in worksite issues such as workers'
compensation, supervisory negligence, disability discrimination, and
sexual harassment. On the environmental front, they are helping to define
the limits of product liability and stress caused by fear of illness.
They also are trained in the use of the psychological autopsy to determine
cause of death.
Forensic psychiatrists use their special knowledge of the medical-legal
interface to testify in cases of medical malpractice, including the explosion
of accusations of sexual exploitation of patients by health professionals.
Informed consent, which involves subtle questions of competence, can
be a crucial factor in determining liability. In one recent case, I testified
on behalf of a woman who (together with her family) was awarded $1.5
million in damages (including interest) because of the consequences of
her physicians' failure to engage her in an informed-consent process
before performing a cesarean section.
What about criminal cases?
Although few defendants win a verdict of "not guilty by reason of
insanity" (NGRI) in court, a larger number receive a stipulated
NGRI on the basis of a forensic psychiatric evaluation. In an even wider
range of cases, a defendant's mental state can make a major difference
as to whether a jury finds the necessary premeditation, or malice aforethought,
to warrant conviction for (say) first-degree murder, as opposed to a
lesser charge. The same considerations may be brought to bear in sentencing
recommendations as well.
The forensic psychiatric consultation can also be a vital aid to determining
whether a client is perjuring himself, or is competent to confess. For
example, a schizophrenic man spent nine years in prison in Florida for
a double murder to which he had made a false, coerced confession which
an expert forensic psychiatric consultation could have revealed to be
invalid. Last year my testimony helped win acquittal for a psychotically
depressed man who had confessed to embezzling city funds that he had
What are some of the other services a forensic psychiatrist can offer
In addition to the highly visible role of expert witness, the forensic
psychiatrist performs numerous consultative services out of the public
eye. These include client management, witness evaluation, witness preparation,
jury selection, and establishing witness credibility. You can decide
in each individual case which of these services will be most helpful
to your client. But it helps to engage in an ongoing dialogue with the
Won't my clients balk at hiring a forensic psychiatrist?
Often they will, because they don't understand the value of the forensic
psychiatrist's contribution. Trial attorneys, even when they themselves
are convinced of the need to retain a forensic expert, often must work
hard to persuade the client that this additional investment is necessary.
Specifically, a plaintiff who is suing for emotional damages may be reluctant
to talk about traumatic experiences that carry a stigma. This fear and
inhibition tend to be expressed in a stereotypical devaluation of psychiatry.
The client thinks, "It won't get me much, and it probably will cause
me trouble." On the defense side, clients who are already unhappy
about being sued or prosecuted typically displace and vent their anger
by objecting, if not to the attorney's, then to the expert's fees.
What if my client says, "Isn't one psychiatrist as good as another?
Why not get a "hired gun" who will do the job in the least
time and give us the opinion we're looking for?"
Although the popular stereotype of the "hired gun" is largely
a historical anachronism, it still conditions the way clients view expert
witnesses. The hired guns that are still around can sometimes save money
for a hard-pressed attorney and can mislead a jury when the opposing
side has not retained a psychiatrist who has done an in-depth forensic
evaluation. However, in my experience they are never effective
when rebutted by an expert with a deep understanding based on meticulous
evaluation of the available medical/legal evidence.
What if my client says, "Why not just have my treating psychiatrist
do the evaluation for the court?"
If there ever was a case of a client being penny-wise and pound-foolish,
it is here. The client who makes this request has no idea -- until it
happens -- how devastating it can be to sacrifice the confidentiality
of the therapeutic relationship and have one's formerly empathic ally
reporting on one's innermost experience in court. How can the client
ever trust a therapist enough to enter into therapy again?
Not only that, but the use of a treating psychiatrist in place of a forensic
psychiatrist has, in my experience, generally damaged the client's case.
That is because the forensic psychiatrist's specialized expertise "trumps" the
clinician's less well-informed opinion. In every civil action in which
I've served as expert for the defense while the plaintiff has offered
only the report of a treating clinician, the case has been summarily
dismissed, settled for nuisance value, or yielded a trial award far below
the plaintiff's expectations. This just happened in a suit against a
hospital for alleged sexual misconduct by a nurse and supervisory negligence.
The judge essentially said, "The defense has an expert's report;
the plaintiff doesn't. Case dismissed."
In a criminal case, the defense attorney who retains the treating clinician
as an expert witness may be in for a rude shock. The treating clinician
may turn out to be prejudiced against the defendant merely by virtue
of the act the defendant has committed. Having been trained in medical
school to "first, do no harm,"
the general psychiatrist may become so preoccupied with the harm done
to the victim or to society as to lose sight of the harm being done to
A therapist engages in an empathic exploration of the patient's subjective
point of view, which entails a degree of emotional identification and
a "willing suspension of disbelief."
A forensic psychiatrist, by contrast, undertakes an objective investigation
of cause-and-effect relationships, using multiple perspectives and information
sources. The two roles are so incompatible that the American Academy
of Psychiatry and the Law considers it unethical to combine them when
the alternative of a forensic psychiatrist who is not the treating psychiatrist
How, then, can I convince my client to expend limited funds to retain
a forensic psychiatric expert?
First, by explaining that, whether or not you retain such an expert,
your client's adversary may well do so. As you probably have observed,
forensic psychiatrists are a growing presence throughout the legal system,
working behind the scenes as well as on the witness stand to inform attorneys,
judges, and juries about why people do what they do. Next, emphasize
that forensic expertise is effective. I've never testified on the losing
side in a case in which the opposing side has failed to put forward a
forensic psychiatric expert of its own, or has hired a psychiatrist who
performed a perfunctory examination, the stereotypical "hired gun."
How does a forensic psychiatrist go about conducting an evaluation?
A properly conducted forensic evaluation is an extended, in-depth process.
It entails multiple interviews, detailed review and comparison of what
the examinee has communicated on different occasions, microanalysis of
the data (with consideration of sequence, tone, and nonverbal behavior),
and cross-checking with corroborative evidence (interviews with relevant
others, police and medical records, other expert witness reports, and
This evaluation must be conducted with subtlety and delicacy. The examinee
not only may falsify or misattribute, but also may minimize or deny symptoms
of traumatic stress or exhibit amnesia or denial of past events whose
remembrance evokes such stress. Thus, people under stress may forget
details that subsequently emerge, or they may embellish their memories
and engage in wishful thinking. Neither of these distortions ipso facto
constitutes malingering or perjury.
The essence of forensic psychiatry lies in creating a working alliance
with the person being examined for the limited purposes of the examination.
It is to have the person be a collaborator (albeit sometimes a reluctant,
conflicted, or inhibited one) in reconstructing the mental, emotional,
and physical states in question.
What does a forensic psychiatric consultation cost?
Because a forensic psychiatric consultation/evaluation is a nonclinical
procedure requiring additional training and skill, it carries a higher
fee than general psychiatry. A typical forensic psychiatric hour costs
between $250 and $500 an hour. Time billed generally includes review,
examination, preparation, travel, and testimony. This can be an expensive
service. You must evaluate whether, in a particular case, the benefit
is worth the additional cost. You can do this by having an initial review
by a forensic psychiatrist before deciding whether to proceed with a
full-scale evaluation. Such a review can help you prioritize the available
forensic psychiatric services within your budgetary limits. At the same
time, as experienced attorneys well know, it is necessary to secure funding
from the client before authorizing services.
Will a forensic psychiatrist accept a contingency fee?
Not if the psychiatrist is practicing according to the ethical
guidelines published by the American Academy of Psychiatry and
the Law. Contingency fees are ruled out because they compromise the
objectivity of the evaluation. Attorneys who pressure an expert witness
to work on a contingency basis are, in effect, asking the expert
to engage in unprofessional and unethical conduct.
Can I be held liable for not retaining a forensic psychiatrist if my
client loses the case?
I have been retained in several cases of legal malpractice based on an
attorney's failure to obtain a forensic psychiatric consultation. The
defense has prevailed in cases where it could be established that, had
a forensic psychiatrist been retained, there would have been no finding
helpful to the client. As with other forms of negligence, there is no
liability if there is no damage. The case would hinge, therefore, on
whether a forensic consultation would likely have been helpful to the
Copyright on this material is retained by Harold
J. Bursztajn, M.D. Permission is granted by Dr. Bursztajn to
reprint this article in its entirety, including this copyright notice
and the by-line, for educational purposes only. Expressed written
consent from Dr. Bursztajn must be obtained before reproduction of
this article for any other purpose.