Through the Glass, Darkly: Forensic Examinations under Improvised Conditions

Prosecutor: I’m glad I was able to find you in your office.

Doctor: Well, the first part’s correct—you were able to find me. For the past few weeks, though, all of my calls have just been forwarded to the house.

Prosecutor: Really! How does that work?

Doctor: First, you dial a special number the phone company provides, and then you punch in the code for . . .

Prosecutor: I mean, how can you talk about these matters at home? I know you’ve got kids that the local schools must have handed back to you, and you’re probably still married despite all the times we drag you downtown to the detention center on a weekend.

Doctor: I’m self-isolating in the basement, perched on a lawn chair between the exercise bike and the beer fridge. Do you need help with something?

Prosecutor: Actually, we want to drag you downtown to the detention center on a weekend.

Doctor: I suppose if there’s anyone who can send you to jail, it’s a prosecutor, but I’ve heard the detention center is on lockdown.

Prosecutor: True. I can’t set you up with a contact room for a face-to-face exam, but you can examine the defendant through the glass in the visitation area.

Doctor: That’s going to limit our options, as you can imagine. What’s the issue in this case?

Prosecutor: It’s competency to stand trial. The public defender is insisting that this guy has an intellectual disability. I’m sure we’re going to need an IQ score.

Doctor: Your judge is going to wonder what my IQ score is if I try to tell her I could figure this out by chatting with the defendant through the glass.

Prosecutor: Isn’t there any testing you could just administer orally?

Doctor: Sure—some screening measures and checklists, including some malingering measures . . .

Prosecutor: My favorites! Did I mention earlier that I’m a prosecutor?

Doctor: . . . but there’s no way I’m going to be able to get you any more than a general estimate about IQ without administering more comprehensive assessment measures. Has anyone else done cognitive testing with this defendant?

Prosecutor: No. He was home-schooled, so there wasn’t an IEP, and I haven’t seen anything else about IQ or anything like it. The public defender filed a motion for an evaluation a few weeks ago, but then withdrew it because none of their usual suspects were willing to do one.

Doctor: Because of the same issues I’m raising? Because of health and safety concerns?

Prosecutor: No. Because of “privacy” concerns. The doctors—and I have no way to determine if they’re the ones who actually had a problem with this—were described as being uncomfortable with the possibility that the examinations might be recorded.

Doctor: You know, as a practical matter, that may be more of a real concern than you might think. I’m not talking about prosecutors colluding with jailers to spy on defense exams . . .

Prosecutor: Maybe we need to move your lawn chair a little further away from the beer fridge. Did I mention earlier that I’m a prosecutor?

Doctor: . . . but I did have one evaluation where I asked about this ahead of time, and the jailer insisted she had no control over the visitation recordings because they were triggered automatically as soon as the microphone was turned on.

Prosecutor: I see! We can certainly check into this. Are you willing to at least go downtown and conduct an interview and some of those other tests? My judge is getting antsy about the timeline in this case.

Doctor: Sure . . . , but we need to be clear from the beginning that any report you wind up asking me to write will need to reflect the circumstances.

Prosecutor: I understand. Does this mean your report would give a bunch of opinions and then explain why you can’t really stand behind them?

Doctor: If that’s where I came down on this evaluation, I assume you won’t ask me to write a report at all. What I would want to do is to make it clear how the examination was conducted, and how any irregularities—if there were any—would temper the conclusions.

Prosecutor: Fair enough. I certainly wouldn’t be asking you to slant your results or to hide anything. This entire discussion reminds me of something else, though . . .

Doctor: What’s that?

Prosecutor: In another case we had recently, the defense expert examined a defendant who wasn’t in jail but was out on bond and self-isolating at home . . . even though she could have gotten a pass from her probation officer to go to the doctor’s office or meet in the lawyer’s office . . . so the doctor conducted the examination by Skype.

Doctor: Was the examination recorded?

Prosecutor: No . . . but, well . . .

Doctor: Exactly. How did the doctor know the defendant didn’t record it? Was there anyone else in the room with the defendant during the examination?

Prosecutor: No . . . but, well . . .

Doctor: You see where I’m going with this. How do we know there wasn’t someone right outside the frame, nodding his head, shaking his head, or holding up notes with advice like “tell them you don’t know what a jury does”?

Prosecutor: Does this mean I’m going to have to have the results of that exam excluded? Maybe we shouldn’t be doing any of this nontraditional stuff at all, and just wait until things get back to normal again.

Doctor: Whenever that’s going to be. My advice is this: Ask the commonsense questions, don’t take anything for granted, and make sure the doctors can explain what they did, why they did it, and what it means for their opinions.

Prosecutor: Thanks; stay well, and I’ll be back in touch soon.

Our readers were also promised a “balanced approach,” so here goes: Just because prosecution experts will have an obligation to contextualize their results when a report is written doesn’t mean that defense counsel can’t raise issues about the sufficiency of a particular examination in advance. In fact, the need for an optimally conducted forensic evaluation may even be that one last bit of information that convinces the judge to discharge the defendant from the jail altogether, if only for a circumscribed period of time.

Please feel encouraged to contact Dr. Drogin at [email protected] with any questions about improvised examination conditions, or with any suggestions for future topics.