This column’s inaugural outing addressed counsel’s need for assistance in “deciphering the roles” of mental health experts. Roles are often helpfully defined by labels, but all criminal justice practitioners know that labels also can confuse and obscure. Although cross examination presents an opportunity to get to the bottom of labeling issues, wouldn’t it be nice to gain some relevant insight ahead of time? Let’s examine how a prosecutor might interact with a reputable forensic psychologist in determining what certain labels actually mean:
Prosecutor: I’d like you to help me find a good forensic psychologist for this new case of mine.
Doctor: Well, I appreciate your not trying to overload me.
Prosecutor: It’s not like that. I’m thinking you’ll have a conflict of interest with this one.
Doctor: Try me—although I know I should never say that to a prosecutor.
Prosecutor: The defendant is your ex-boss.
Doctor: Okay, I can see the conflict there. Especially because she’s the one who hired me.
Prosecutor: I didn’t know that part! I guess her attorney will be going with an insanity defense. Anyway, do you feel uncomfortable at least sending me in the right direction?
Doctor: She’s also the one who fired me.
Prosecutor: Understood . . . , but all joking aside, you know I just want someone who’ll tell me the truth, not someone who’ll try to make it come out a certain way.
Doctor: You said you wanted a “good” one. That’s not setting the bar impermissibly high.
Prosecutor: What I really want is a neuropsychologist.
Doctor: How so?
Prosecutor: I need someone who can be alert to the possibility of some sort of problem with the defendant’s brain.
Doctor: What organ do you think the rest of us are examining?
Prosecutor: Isn’t the neuropsychologist the one who can find out if there’s some sort of issue instead of the defendant’s personality or instead of some kind of psychotic disorder like schizophrenia?
Doctor: We all have to be able to do that. If you send me to evaluate defendants and I say they’re incompetent to stand trial because they’re schizophrenic, do you think that maybe they really have brain damage instead, but I’d have no way of knowing?
Prosecutor: I have no idea—I send you people because you don’t say they’re incompetent. Okay; I said all joking aside. Does this mean you’re licensed as a neuropsychologist?
Doctor: No one is.
Prosecutor: No one in this city?
Doctor: No one in this country.
Prosecutor: Like you said, “how so?”
Doctor: It’s a specialty area, which means that while it’s something we all need to be able to do—to a certain extent—there are some doctors who hang their hats on that distinction, but it’s not as if they get a Ph.D. in neuropsychology, take a neuropsychology state exam, and wind up licensed as a “neuropsychologist” per se.
Prosecutor: You’re a forensic psychologist. I just assumed you had a Ph.D. in forensic psychology and were licensed as such.
Doctor: No, but I’m board certified in forensic psychology. That’s a way of establishing that I specialize in court-related evaluations.
Prosecutor: But you’re not board-certified in neuropsychology.
Doctor: That’s true. I’m also not board-certified in schizophrenia, but I still have to be able to know if someone has it. That’s going to be in any properly trained clinical psychologist’s wheelhouse.
Prosecutor: Clinical as opposed to . . .
Doctor: As opposed to someone who doesn’t conduct therapy or evaluations at all.
Prosecutor: I like the sound of it, anyway, especially when it comes to impressing my jury. There are psychologists, there are neuropsychologists, and I’m guessing there are clinical neuropsychologists?
Doctor: There are—as opposed to the ones who spend most of their time in the laboratory. If I sound like I’m saying the lab folks are second-class scientific citizens, they’re not, of course—and sometimes they’re just whom you’ll need for the right kind of case and the right kind of jury.
Prosecutor: For example?
Doctor: For example, when your mental health case depends on some kind of cutting-edge research best described—at least as far as your jury is concerned—by someone with her initials stitched on a white lab coat.
Prosecutor: Does it make them look more objective?
Doctor: It can. It’s not like your clinically oriented forensic psychologist doesn’t know about science, makes it up as he goes along, or—even worse—is only there to do your bidding, but in some cases there’s no substitute for your expert to come across as Cincinnatus called from the plow, kindly but uninvested in the mundane squabbles of the criminal justice system, and patiently waiting for his lab assistants to drive him back over to the ivory tower so he can get back to finding a cure for brain cancer.
Prosecutor: It would still be nice to say that my expert’s Ph.D. is actually in something that I want her to explain to my jury.
Doctor: That goal’s not always out of reach, but sometimes it can backfire. There’s a debate within psychology, for example, about the implications of a program that actually does grant a doctorate in “Forensic Psychology.” The argument sometimes offered against the notion is that broader training leads to a more well-rounded understanding of the multitude of issues that can arise in the course of conducting evaluations that inform the court. After all, practicum training, internship, and post-doctoral experience can help someone to apply an appropriately grounded education to legal settings.
Prosecutor: . . . and I can always bring these things out when I’m qualifying my expert witness.
Doctor: Unless you just allow the other side to stipulate to the qualifications of your expert witness. On the one hand, it’s nice not to have to waste time squabbling over whether a presumptively suitable doctor is going to get to testify, but on the other hand, stipulation can be a ruse to keep retaining counsel from reminding the judge or the jury just how qualified that doctor really is.
Prosecutor: I’ve seen expert witnesses being challenged about a lack of depth in a particular area. Being able to point out that it was part of their education as well as their current academic or clinical duties is a nice thing to be able to do.
Doctor: This is why it’s a good idea to check in with your experts ahead of time about just what their graduate coursework included—the type of thing that doesn’t usually show up on a C.V.
Prosecutor: Specialization is good, right?
Doctor: It can be, as long as it’s not overspecialization. After all, what happens when you go into a case thinking the defendant may have one type of disorder, and then some other disorder surfaces?
Our readers also were promised a “balanced approach,” so here goes. Defense counsel will naturally reject a “one-size-fits-all” definition of expertise when a case truly turns on some relatively obscure condition or circumstance, and in any event defense counsel should not be dissuaded from rigorous inquiry into the suitability of any individual expert—the other side’s or one’s own.
Please feel encouraged to contact Dr. Drogin at firstname.lastname@example.org with any questions about the nature and implications of academic and clinical labeling, or with any suggestions for future topics.