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 In response, the plaintiffs presented testimony by other well-qualified experts which used various kinds of unpublished research to reach the opposite conclusion.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 have gained "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case for trial on the grounds that the adoption of the Federal Rules of Evidence in 1975 (particularly Rule 702) had superseded the Frye "general acceptance" test.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 trial judge.

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 well.

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 in Daubert:

  1. 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.
  2. Peer review and publication: Forensic psychiatrists regularly discuss their methods in peer-reviewed professional journals.
  3. Known or potential error rate: Error rates are as precisely specified in psychiatric diagnosis as in any other branch of clinical medicine.
  4. 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.
  5. 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 testimony?

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.