The testimony of psychiatric experts is often key to case outcomes, but a board certified forensic psychiatrist says that there remains a popular perception that these experts are “hired guns” and that their expertise is “for sale.”
According to Dr. Helen M. Farrell, a Harvard Medical School faculty member and frequent forensic consultant on both criminal and civil cases, lawyers can combat these misperceptions by helping to maintain the moral integrity of their experts.
Farrell shares how in her recent article in Criminal Justice magazine, “Preserving Your Psychiatric Expert’s Integrity in Criminal Matters: From Retention Through Testimony.”
Concerns frequently revolve around who is paying the evaluator. “An important consideration at the outset is that counsel is exchanging dollars for time – not for an opinion or findings per se,” Farrell says.
A written contract that clearly states hourly rates, the retainer fees and the fact that the expert is exchanging money for time and not for a predetermined opinion is strongly favored by Farrell, who notes that additional contract language outlining counsel’s expectation that the expert will be fair and neutral in reaching an impartial finding may also be useful to include.
Such a service contract is particularly important if the lawyer and expert share a personal relationship, either because they share mutual colleagues or are friends themselves.
Whether they are close friends or distant acquaintances, both should maintain professional boundaries that are consistent across the board, even in what may seem like informal exchanges via text and email, Farrell says.
At the outset, it’s also a good idea to emphasize that all notes and files are confidential, as some experts may instinctively feel a pull to share their work product with colleagues for consultation and students for instructional purposes. “These are clinically sound instincts, but not viable forensic instincts,” Farrell warns.
To facilitate the impartiality of the testimony, Farrell suggests that lawyers encourage their experts to keep a running list of data that both support and refute the retaining counsel’s position. While helping to ensure an unbiased opinion, the approach may also prove invaluable to the attorney in understanding the findings if the expert believes “the mental health component just doesn’t hold water.”
Farrell also warns against attempting to slant testimony. While seemingly obvious advice, in the “emotional pressure cooker” that today’s lawyers are under to deliver results that clients want, it may be tempting to ask the expert to ignore certain “inconvenient” details that the attorney may believe are irrelevant. Although omitting certain facts may in fact strengthen a case, Farrell says that it’s unethical and violates the guiding principles of forensic practice.
“Experts may be called upon to alter reports in the event of typographical errors, newly discovered information and the like, but their opinions must remain sacrosanct,” Farrell emphasizes.
Among other tips from Farrell:
- If the expert is preparing a written report, encourage him or her to address only the legal issues that are within the scope of the original referral question.
- In-person meetings prior to court testimony or depositions are a good idea, as “the forensic psychiatrist’s ethical and procedural reservations cannot always be anticipated” beforehand.
- And, “experts need to know that it is okay, and even at times desirable for them to say, ‘I don’t know’ or ‘I don’t have an opinion on that.”
For more guidance on the use of psychiatric experts, view Farrell’s article here.
Criminal Justice Magazine is a publication of the ABA Criminal Justice Section.