Forensic Report Writing and Collateral Records: Hostage Crisis or Due Diligence?

When it made its first appearance over eight years ago, this column reflected upon the role of “correct information” in the context of a “forensic evaluation” that then becomes enshrined in an “ensuing report.” Is “correct information” the same thing as “all existing information”? Is there an elucidated standard that prevents the issuance of a report without some defined—or at least definable—bulk of collateral records? Let’s examine how a prosecutor might consult with a reputable mental health professional about what sort of documentation may actually be required, as the clock ticks ever more loudly.

Prosecutor: You can’t imagine how anxious I am to get your opinion in the case so we can prepare for next month’s competency hearing.

Doctor: Fortunately, given my day job, I don’t have to imagine. Are you experiencing restlessness, fatigue, concentration, irritability, sleep disturbance, or muscle tension?

Prosecutor: Yes, yes, yes, yes, yes, and yes. Does that mean I have an anxiety disorder?

Doctor: Well, we’re not supposed to diagnose our colleagues.

Prosecutor: Then why ask?

Doctor: Because it’s always so entertaining to make a prosecutor say “yes” about something. Besides, even if you did have an anxiety disorder, my opinion wouldn’t be causing it.

Prosecutor: Because I’m going to like it?

Doctor: Because you already have my opinion: “competent to stand trial.” I told you three weeks ago, right after the exam.

Prosecutor: That much I remember. When did you send me your report?

Doctor: I haven’t.

Prosecutor: You know this jurisdiction requires that all competency reports be reduced to writing.

Doctor: Absolutely, you’ll also remember the discussion where I told you about the records we’re still seeking in this matter … and I did reduce that much to writing.

Prosecutor: Can you refresh my memory?

Doctor: Let’s see. Little River Kindergarten, 2000 to 2001. Valley Elementary School, 2001 to 2007. Held back, apparently. Central Junior High School, 2007 to 2010. The education trail goes cold at Central High School, 2010–2011.

Prosecutor: Just one year of high school?

Doctor: I think the law says kids in this state can drop out at 16 years of age. What about the medical records I mentioned? The defendant claims to have been in a car accident that caused a traumatic brain injury. There apparently were multiple stints in Northern Psychiatric Hospital and another three or four years of psychotherapy at Northern’s intensive outpatient facility. Also on my list were records of a Social Security disability evaluation and an unsuccessful attempt by family members to have a guardianship instituted in district court.

Prosecutor: How would obtaining all of these disability-related records help you to establish that the defendant is competent to stand trial?

Doctor: First of all, “establishing” something wouldn’t be my goal. The idea is to float a request for all relevant sources of information—a lot of the time, of course, we don’t know how relevant something is until we see it—and then come up with as accurate an opinion as possible.

Prosecutor: Fair enough.

Doctor: I’m not blind to the fact that all of this is occurring in the contest of an adversarial proceeding. Don’t you think defense counsel is hunting down the same collection of records?

Prosecutor: That is a good point.

Doctor: If I’m going to opine—and believe me, I will—that the defendant in this case is competent to stand trial, then you’ll want me to be able to explain how I reached this opinion despite as well as because of all the evidence.

Prosecutor: At the risk of undermining your confidence in an opinion I’m dying to see in writing, what makes you so sure that “competent” is the bottom line here?

Doctor: The defendant is aware of having an attorney, comments that the attorney is a public defender, and says that the reason that this particular type of representation was provided was because “I don’t have any money.” Able to define such terms as “guilty,” “innocent,” “convicted,” “plea bargain,” and “probation,” the defendant knows that these proceedings could result in a penalty of “life without parole.” The interactive roles of the “judge,” the “jury,” the “prosecutor,” and the “public defender” are described in detail, without error.

Prosecutor: What about the rest of the competency standard?

Doctor: The “rational participation” part? The defendant insists that counsel is “working hard” and is on the defendant’s “side.” Clear intent to follow counsel’s legal advice is endorsed, accompanied by an understanding that the court remains available to address significant disputes over trial strategy and tactics. How is the defendant required to behave in court? “Calmly” and “respectfully,” with a claimed ability to meet and maintain this standard in hearings and throughout the course of a felony trial. Nothing psychotic or delusional pops up anywhere.

Prosecutor: But you’re still asking for all of those records. Is this one of those situations where mental health professionals have standards that compel them to insist on certain things that no lawyer would ever have considered in a million years?

Doctor: The American Academy of Psychiatry and the Law has “Ethics Guidelines for the Practice of Forensic Psychiatry” that encourage psychiatrists to “enhance the honesty and objectivity of their work by basing their forensic opinions, forensic reports, and forensic testimony on all available data.”

Prosecutor: What about psychologists?

Doctor: The American Psychological Association’s “Specialty Guidelines for Forensic Psychology” assert that “forensic practitioners seek to maintain integrity by examining the issue or problem at hand from all reasonable perspectives and seek information that will differentially test plausible rival hypotheses.”

Prosecutor: Do either of these sets of rules require doctors to—for example—“refrain from generating reports until every potentially relevant document has been obtained”?

Doctor: Not at all. Sometimes we haven’t received everything we want, and a deadline is looming, and the report just has to get written. If things are missing that could alter an opinion or make that opinion less certain, then that can be addressed in the report.

Prosecutor: So the reason I don’t have a report yet is because I haven’t identified that deadline for you, not because you feel you can’t reach a supportable scientific conclusion.

Doctor: Exactly. We don’t hold reports hostage for records. We’re just seeking the opportunity to get as much as we can so we can do the best we can, and if we think we should have had more, then we can say so in the report.

Prosecutor: Then please generate the best report you can by the end of the month, with whatever I can find you. I’ll also make sure to send you a copy of the court order authorizing payment.

Doctor: Now there’s a document I will need!

Our readers were also promised a “balanced approach,” so here goes: Defense counsel is not compelled to accept the prosecution expert’s assessment of “how much is enough.” The most effective cross-examinations focus less on jousting about mental health science than on introducing waves of unreviewed data and inquiring, ever more insistently, how none of them could have led to a different forensic conclusion.

Please feel encouraged to contact Dr. Drogin with any questions about collateral records, or with any suggestions for future topics.