Ask the Expert
National Certification for Forensic Psychiatrists: A Preview of the Post-Daubert Expert
Harold J. Bursztajn, MD
Linda Stout Saunders, JD
Archie Brodsky, BA
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 locally and nationally
to attorneys and institutions. Linda Stout Saunders, a former Special
Judge for Concord District Court (Concord, N.H.), is Treasurer of
the New Hampshire Trial Lawyers Association and Director of Jurimetrics
Associates, which offers consulting services in the area of law and
psychiatry. Archie Brodsky is Senior Research Associate, Program
in Psychiatry and the Law, Harvard Medical School at the Massachusetts
Mental Health Center. The authors are affiliated with Judge and Jury
Decision Making, a research and consultation service dedicated to
understanding the processes by which judges and juries make decisions
when complex scientific evidence is at issue.
I often retain expert witnesses. How will the admissibility of their
testimony be affected by the U.S. Supreme Court's decision in Daubert
vs. Merrell Dow Pharmaceuticals, Inc., which appeared to set scientific
standards for admissibility?
Daubert was one of many cases in which the manufacturer
of the prescription drug Bendectin was sued over birth defects allegedly
caused by the drug. A federal district court granted summary judgment
for the defendants on the basis of expert testimony to the effect that
numerous published studies had not found Bendectin to be a cause of human
birth defects. In response, the plaintiffs presented testimony by other
well-qualified experts which used various kinds of unpublished research
to reach the opposite conclusion. In affirming summary judgment, a U.S.
Court of Appeals cited the Frye test, based on a seventy-year-old
court ruling, under which the scientific basis of expert testimony must
"general acceptance in the particular field to which it belongs"
to be admissible. In Daubert the plaintiffs' experts' research,
never published or subjected to peer review, did not meet this test.
The U.S. Supreme Court, having granted certiorari, vacated this judgment
and remanded the case for trial on the grounds that the adoption
of the Federal Rules of Evidence in 1975 (particularly Rule 702)
had superseded the Frye "general acceptance"
test. The Court stated that "such a rigid standard would be at odds
with the Rules' liberal thrust and their general approach of relaxing
the traditional barriers to `opinion' testimony."
However, the Court also rejected the plaintiffs' claim that admissibility
under the Federal Rules required only that the expert be qualified and
have something relevant to contribute. Instead, the Court concluded, "The
Rules--especially Rule 702--place appropriate limits on the admissibility
of purportedly scientific evidence by assigning to the trial judge the
task of ensuring that an expert's testimony both rests on a reliable
foundation and is relevant to the task at hand." Thus, the court
did not directly decide the admissibility of the particular evidence
at issue in Daubert, but left that determination to the
Didn't the Court go on to enumerate specific factors by which trial judges
were to determine the relevance and reliability of scientific testimony?
Yes. However, the core of the decision was not the specific guidelines
the Court articulated, but the establishment of relevance and reliability
as the basic criteria for admissibility of expert testimony based
on scientific knowledge. As the Court made clear:
The inquiry envisioned by Rule 702 is, we emphasize, a flexible one.
Its overarching subject is the scientific validity--and thus the
evidentiary relevance and reliability--of the principles that underlie
a proposed submission. The focus, of course, must be solely on principles
and methodology, not on the conclusions that they generate.
The Court enumerated several factors bearing upon whether a theory or
technique constituted "scientific knowledge." These were
presented, however, not as dispositive, but rather as examples of
what a judge might consider in determining the relevance and reliability,
for evidentiary purposes, of expert testimony based on scientific
knowledge. The court made this clear when it stated,
"Many factors will bear on the inquiry, and we do not presume to
set out a definitive checklist or test."
The Court also recognized that there are other forms of "expert"
knowledge besides the scientific when it noted, "Rule 702 also applies
to `technical, or other specialized knowledge.'"
Although the specific factors set forth in Daubert arose
in the context of scientific knowledge, the general criteria of relevance
and reliability would appear to be applicable in assessing admissibility
of expert testimony based on "technical, or other specialized knowledge" as
How hospitable are the specific guidelines set forth in Daubert to
forensic psychiatric testimony?
Assuming that forensic psychiatric expertise is to be treated as scientific
knowledge, as opposed to "other specialized knowledge," for
the purpose of determining admissibility, reputable testimony in
this field will be admitted as readily as other expert medical testimony.
Bearing in mind that forensic psychiatric expertise consists of (1)
methods and techniques specific to the forensic subspecialty and
(2) the foundation of clinical psychiatric knowledge and experience
on which forensic psychiatry rests, let us look at this field in
terms of the Court's five guidelines for assessing scientific knowledge
Testability: The clinical theories and techniques
relied upon by psychiatrists have had as much (if not more) epidemiological
followup in the form of "natural history" studies as those
in any other branch of clinical medicine.
Peer review and publication: Forensic psychiatrists
regularly discuss their methods in peer-reviewed professional journals.
Known or potential error rate: Error rates are as
precisely specified in psychiatric diagnosis as in any other branch
of clinical medicine.
Standards controlling operation: Standards governing
the practice of forensic psychiatry are articulated in the Ethical
Guidelines of the American Academy of Psychiatry and the Law, which
provide methodological as well as ethical benchmarks for the accreditation
process described below.
General acceptance: The Court's acknowledgment that
well-established propositions in a particular field may be less readily
challenged and more easily defended than less well-established opinions
is as workable a guideline for psychiatry as for any other branch
of clinical medicine. At the same time, by ruling out a rigid and
absolute "general acceptance" test, the Court has allowed
for "reasonable minority" opinions.
However, as the Court noted, the standard set forth in Daubert is
a flexible one, allowing the trial judge to consider factors indicative
of reliability with respect to a particular discipline.
So can a judge, in determining admissibility, still take into account
that an expert witness is recognized and respected in his or her field?
Michael Gottesman, who represented the plaintiffs in Daubert,
has since published an article in which he strongly argues for the legitimacy
of this approach. Reviewing the sources the Court drew upon in its discussion
of relevance and reliability, he notes, among the factors mentioned by
these sources, the expert's qualifications, stature, and reputation in
the scientific community. Noting that experts in many areas "are
capable of making assessments of probabilities that are respected by
others in their field"--assessments no less precise than the standard
of proof in civil litigation--Gottesman proposes inclusion of a dispositive "prestige" factor
in the Daubert rubric. In his view, the testimony of a
"highly credentialed expert who has devoted her life's work to the
actual exercise of the methodology upon which her testimony is based" should
be admitted without further questioning.
What implications do these developments have for forensic psychiatric
For one thing, judges increasingly will look with disfavor on therapists
who offer expert testimony (as opposed to fact testimony) about patients
they have treated. Most of these clinicians do not specialize in
forensic psychiatric evaluation. That is not what they are trained
to do, and that is not what they regularly spend their time doing.
Also, the practice of combining the incompatible roles of treating
clinician and expert witness (with the same person as patient/evaluee)
cannot be said to enjoy "general acceptance" in the field,
since it violates the ethical guidelines of the American Academy
of Psychiatry and the Law. Therefore, you can expect to see more
and more challenges to the admissibility of the treating clinician's
testimony as expert-witness rather than fact-witness evidence.
Who, then, is best qualified to give expert testimony in forensic psychiatry?
What are the relevant credentials in this field?
Last year the American Board of Psychiatry and Neurology (a subdivision
of the American Board of Medical Specialties) established "Added
Qualifications in Forensic Psychiatry." A physician who has
already been certified by the Board as a general psychiatrist becomes
eligible to apply for this forensic accreditation by successfully
completing at least one year of specialized training in forensic
psychiatry (or, through 1999, by spending 25 percent of his or her
practice time in forensic psychiatry). Eligible candidates then take
an examination covering basic legal systems, legal regulation of
psychiatry, functions of the forensic psychiatrist in civil and criminal
law, landmark cases, and special issues in forensic psychiatry. Retaining
an expert who has met these qualifications is the first step in getting
a truly professional evaluation. In more complex cases even more
skills than the minimum required for certification of "Added
Qualifications in Forensic Psychiatry"
will be needed. These can range from expertise in conducting extended
forensic psychiatric examinations to a deep understanding of medico-legal
decision making under conditions of uncertainty.
Why did the Board establish these qualifications now?
The new subspecialty credentials in forensic psychiatry can be seen as
a response to at least two trends. First, there is the trend toward
greater sub-specialization in medicine. As knowledge expands, it
is broken down into smaller units. Secondly, forensic psychiatry
has strengthened its credibility against the criticism that erupted
after the John Hinckley verdict. As a result, the field saw a rapid
expansion of knowledge during the 1980s, with new training programs
and stricter ethical standards. The Added Qualifications in Forensic
Psychiatry provide a national standard for credentialing expert witnesses
in this field. Psychiatry is on the leading edge in recognizing the
need for such a forensic subspecialty credential. Eventually we can
expect to see similarly credentialed forensic cardiologists, forensic
pathologists, and so forth.
Doesn't the Supreme Court's insistence on more active judicial screening
and more objective standards for admitting scientific testimony reflect
a loss of confidence in juries to sift through the scientific evidence
and decide on the facts?
Not exactly, although this is a tension inherent in the Federal Rules
of Evidence themselves. In any case, the Court's decision in Daubert included
a clear reaffirmation of faith in the adversarial process:
[R]espondent seems to us to be overly pessimistic about the capabilities
of the jury, and of the adversary system generally. Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of attacking
shaky but admissible evidence.
This language echoed that used by the Court a decade earlier with respect
to psychiatrists' predictions of a person's future dangerousness.
The "junk science" controversy that crystallized in Daubert highlights
the fact that too few attorneys understand how to use expert witnesses
effectively to rebut the other side's experts. Too many attorneys get
drawn into debates with the experts they cross-examine. Succumbing to
such temptation ends in either confusing the jury or discrediting the
cross-examiner. Judges are free to exercise the authority given them
under Federal Rule of Evidence 611(a) to regulate both the direct and
cross-examination of expert witnesses, so that the resulting testimony
really will give the jury relevant and reliable information. In particular,
judges can intervene actively to stop the ad hominem attacks
and insults that turn cross-examination into a mockery of the search
for justice via the adversarial process.
Do you foresee, then, a more active judicial role in monitoring and shaping
the testimony that gets to the jury?
Yes. We can expect to see more requirements for written reports from
experts, more pretrial screening of proffered testimony, and more
judicial control of direct and cross-examination of experts.
Judges will feel freer to ask opposing experts to confer with each
other prior to trial to ensure an open exchange of relevant data,
thereby increasing the reliability of the testimony offered at trial.
Occasionally, such an exchange of data, as in conciliation hearings,
can result in a pretrial settlement agreeable to all parties.
It sounds as if Daubert has opened up whole new ways for
judges to work with forensic experts?
Yes. For example, a forensic psychiatrist experienced in presenting complex
scientific data to patients and families in the context of clinical
decision making (such as is necessary for the informed-consent process)
can respond to judges' queries on a case-by-case basis as to optimal
jury instructions for considering complex scientific evidence. As
one way of doing this, in cases requiring complex instructions to
the jury, such as insanity-defense cases, a judge may ask the opposing
attorneys to prepare the instructions they would want the judge to
give, which the judge will then synthesize. Forensic psychiatrists
can provide invaluable assistance in framing such proposed instructions.
Moreover, empirical research on how judges and juries make decisions
in cases where complex scientific evidence is presented opens the
way for further refining and enhancing the pursuit of justice. Not
surprisingly, some of the initial studies have been conducted by
forensic psychiatrists looking at how judges process psychiatric
testimony and other scientific evidence. With so much at stake in
the give-and-take between the judicial screening of expert testimony
and the ultimate prerogative of the fact-finder, we now have scientific
methods that can shed additional light on a wide array of judge and
jury decision-making processes.
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.