Sunday, September 22, 2013

The Hired Gun

I know I'm going to get nudged to talk about this article so I'll beat Dinah to the punch. Today's New York Times has a story entitled "Witness for the Prosecution" about a neuropsychologist who frequently is retained to testify on behalf of the state in criminal trials. The expert witness gets criticized for slanting his opinion in favor of the prosecution by ignoring previous history or making certain presumptions about the defendant's previous education or experience. You can read the article yourself, I won't repeat it here.

The article quotes questions from the doctor's cross-examination about the assumptions he based his opinion on: how do you know the defendant took a psychology class? Why are you ignoring or not considering his mental health history? Why are you disregarding DSM diagnostic criteria?

All of this sounds pretty horrible, but the fact of the matter all the questions asked by the cross-examining attorney at the beginning of this article are routine questions that will get asked of any testifying expert. As I mentioned at our recent talk at the Johns Hopkins Odyssey lecture, these questions are designed to make the expert look incompetent or foolish. They are an attempt to undermine the credibility of the expert in the eyes of the judge or jury and to get him flustered and confused.

This is predictable, and to a certain extent it's a choreographed dance. When you express an opinion you will be asked the basis for that opinion---what information did you consider, did you have all the information, why do you rely more heavily on one source of information than another, did you consider the credibility of the information?

The next step is to alter all the details slightly in an attempt to get your opinion to waver or even change: what if this piece of information weren't true, or you found out a certain fact was different from what you assumed? How would this affect your opinion? This step of the process could go on for hours. It can be painfully boring for a jury, so when the NYT article talks about the importance of "presentation" and communication for a good expert witness, that's why. You have to hold a jury's attention for hours in spite of excruciatingly detailed questions, a court room that is either too hot or too cold, and chairs that you can't quite get comfortable in no matter how you twist.

Once all of this is exhausted the last stage is to attack you, personally. If you don't have the guts for this, if you have an issue in your professional past you'd rather not have public, this is the stage that will weed you out of the expert witness field. I note that the NYT article mentioned the expert's appearance on his Facebook profile, and also mentioned he had a Twitter feed. I plan to send this article to my students to remind them that anything they write, anywhere, could theoretically end up on the New York Times web site. I certainly keep this in mind when I blog and tweet. This is the chance you take when you do forensic work, whether or not you are forensically trained.

The last point I'm going to make using this article is the fact that this particular expert is retained as a prosecution expert. There are both advantages and disadvantages to being retained by one side or another, as opposed to working as a neutral court evaluator as I do. A defense expert has the advantage of being able to get in to see the defendant as soon as possible after the offense. This is good because you're more likely to get an accurate picture of the defendant's mental state at the time of the crime. A state or court's expert sees the defendant weeks or even months later, after bail review and arraignment and after the defense expert has had a chance to advise counsel on the likelihood of a viable insanity defense. Experts acting in a neutral court-appointed role have to work harder to gather the data to put together a retrospective picture of that mental state.

I could go on and keep rambling about this but that's enough for now. The NYT's point about the expert being a hired gun as an old one I've talked about before. Ironically, the NYT just made my point about this---if you are a hired gun everyone will know it, it will undermine your credibility and make you less useful as an expert. Being a hired gun is bad for business so most experts know you just can't get away with it over the long term. And that's one of the standard cross-examination techniques as well---trying to paint you as a hired gun.



Dinah said...

I missed the article. Too busy coordinating my limited purple & black wardrobe.

Go Ravens!

Ed Reed will be back at Ravens Stadium on the wrong side. Ray Lewis will be there. And Dinah the Shrink Rapper seated in the end zone.

I won't tweet the game, okay. Just in case I'm ever an expert witness.

battlefield said...

Love that picture! That is one scary hired gun. Who does he testify for? Defense or prosecution?

I read some of the article. From what I read, I can see how some of the questions could make an expert look bad. Like when he was defending a pedophile (Yikes, that's a tough one) and saying that he could recognize the consequences of his actions and didn't have to be in a secure mental health facility upon being released. And then the prosecution wanted to know how the pedophile could fully understand everything if he is borderline intellectual functioning, and the neuropsych said he didn't think that inhibited the man's ability to figure out not to molest kids anymore. That term borderline intellectual probably does sound bad, but I've met some people who were just one step above retarded and they can figure out right from wrong. I would say some of them are even better at this than people of normal intelligence. Forrest Gump anyone? I know he's fictional, but stupid is as stupid does.

ClinkShrink said...

I think the point he was trying to make was that IQ score wasn't enough; there also had to be an impairment in adaptive functioning to be developmentally cognitively disabled.

Sarebear said...

ha ha ha! You used a picture from Doctor Who . . . . my husband started laughing immediately, cause he knew the reference. We are BIG Doctor Who geeks around here.

So much so that my husband was jealous that HE wasn't the one getting a sonic screwdriver complete with lights, sound, and movement, under the Christmas tree last year . . . . lol.

Interesting post. But Doctor Who, yeehaa. The episode the still is from raises lots of interesting ethical questions, medically related even, as well, justice and law and related as well, crime and punishment. Now I'm going to have to go watch it again. It's a show that makes you really THINK, sometimes. (And sometimes it doesn't). Okay, too much sidetrip but you guys just hit my geek button . . . .

Sarebear said...

what's funny is, Who does he testify for, Defense or prosecution? Watch the episode . . . .!! Okay, you probably don't care, but I really AM a big Dr. Who geek . . . ok I'll shut up now. It really is an episode full of interesting ethical stuff.

Um, I need to comment on what Clink is saying lol but you oh well my geek is showing. I'll go put it away now.

ClinkShrink said...

SB: I've enjoyed a few Dr. Who episodes myself in my day. Don't worry about flying your geek flag---you're among friends. And you have enough seniority here that you can say what you want.

Dinah said...

Am I a geek? I don't even know or care who Dr. Who is.

Clink & Roy are Geeks (with a capital G).

battlefield said...

Oh, I see. In that case, I will say that Forrest was not cognitively disabled imo. I thought he was very adaptable and functioned much higher than many of the other characters in the movie.

I've only seen one Dr. Who and it was a Xmas special that was a modern update of A Christmas Carol. Very good show from what I saw. I'll try to watch more.

jesse said...

Complex issue here. First and very importantly, what was the motive of the reporter in writing this article? He most likely had a severe effect on the career of this doctor. And is it so clear that this doctor is, in fact, a hired gun? A hired gun is one who woud take whatever side, the only factor is who has paid him ("It's just business" as is quoted in the Godfather). Yet it could be that this doctor has a strong point of view, one in which almost all people are seen as having more control of their actions than they want to admit. If he does have this point of view he would be sought out by attorneys who could make use of it. Their goal and duty is to do the best for their clients.

We don't know how many cases he might have turned down, and obviously the reporter does not know this either. If it were a fact that he turned down 75% of cases sent to him, and took only those about which he felt strongly, then the import of the article would have been very different.

I have done some testifying in malpractice trials, and certainly do not consider myself an expert on the subject. But I was told by one expert-witness psychiatrist that the psychiatrist should try to determine impartially and honestly what the truth of the case is, but then after committing to help he was then a member of the team. He would not think like an impartial expert on every question, but would present in a way to help his side. This expert said that one cannot honestly remain neutral once one is on the team; impartiality comes in deciding whether one is to be a member of the team. This situation is quite different for court-appointed experts such as Clink who are to be as neutral as possible throughout.