Psychiatric Annals

Psychiatric Participation in Court

Gene L Usdin, MD

No abstract available for this article.

Readers of this issue of Psychiatric Annals will not have to read too carefully to discover the winds of admonition, the winds of doom, that are blowing - not only about psychiatry in general but also about psychiatrists in particular, insofar as their appearance in court is concerned. This makes an overall perspective and constructive approach all the more necessary.

Judge Bazelon has cited some of the perils of our wizardry - how we attempt to use our knowledge as psychiatrists as both a sword and a shield in the courtroom. I would like to present a pragmatic overview of the way I think psychiatrists can be most useful - and most effective - in testifying in court.

I shall not discuss technicalities or intricacies of the various laws that govern criminal responsibility or competency. We are aware that legal procedures are based on the adversary model, in which each party to the conflict is expected to advocate vigorously his own point of view. The entire process is carefully governed by procedural rules, and the court attempts to establish facts in relation to laws that are set down explicitly. Witnesses who testify in court are limited to reporting on information they have perceived directly through their five senses. They are not allowed to repeat things they have heard from out-of-court declarants (although exceptions to the hearsay rule allow them some leeway). All evidence brought before the court is subjected to challenge and cross-examination by the opposing attorney.

There are many critics of the caliber of psychiatric participation in our courts. Also, there eure some extremely capable, conscientious colleagues who even hold that psychiatrists should not participate as expert witnesses in a trial. I believe otherwise, and I would like to review some of the points that I feel can make the psychiatrist more effective and constructive when he participates in the courtroom.

Other authors in this issue have concentrated largely on the correctional system - on criminal law. We also may be asked to testify in civil and malpractice cases.

Judge Bazelon mentions that in his experience many psychiatrists are reluctant to testify. It is understandable why many psychiatrists have built up undue anxieties regarding participation in legal matters - no one relishes the provocative kind of vicious. Perry Mason-type of attack upon one's ability and credibility that sometimes occurs. This is one reason why some psychiatrists prefer to avoid any contact with legal matters, seeking the security of their own offices in preference to the uncertainties, anxieties, and occasional inconveniences of courtroom appearances.

While such anxiety is understandable, psychiatrists who are unwilling to provide the legal system with their expertise do a disservice - not only to the individual who may be directly affected by their absence from the witness stand but to our legal system as well and to society as a whole. If you are one who feels threatened when asked to testify in court, keep this in mind: The competent psychiatrist outside the courtroom will be a competent psychiatrist inside the courtroom - that is, if he follows a few simple guidelines.

The basic thing to remember is that whenever you participate in court, you participate as a psychiatrist and not as a lawyer. You are an "expert witness" because of your expertise in psychiatry. As an expert witness, you are permitted to express opinions. This means that in addition to reporting facts you may know, you may draw inferences or conclusions, such as that the person about whom you are testifying is mentally ill.

Often a psychiatrist will want to help "win" the case, once he has reached an opinion. This is a mistake, because the thing the psychiatrist must do at all costs is to avoid partisanship. Basically the psychiatrist's role is to impart medical knowledge, not to win legal victory.

So, when testifying, do not pattern your conduct after that of a lawyer intent on winning the case. Rather, present your opinion to the best of your ability, making clear to the judge and jury the degree of certainty or uncertainty you have. The psychiatrist's impression, when he is testifying, is based on the totality of his knowledge. Realize that you are only expected to present information based on your own particular knowledge in the field in which you feel competent, and you will not have to be concerned (as Judge Bazelon notes, many of our colleagues are concerned) with the cross-examination.

I have not been an armchair theorist about psychiatric participation in court; rather, I am a psychiatrist who has been involved in a participatory manner for nearly 25 years. The following are suggestions that may prove helpful when you are next called upon to testify.

1. Establish terms for an adequate examination and place. You should do this when you are first contacted. Your possible participation in the trial actually starts with this initial contact. When you are called - whether it is by the judge who wants you to serve as an impartial expert or by a lawyer who wants you to evaluate the client - you should make sure that the person calling you has a clear understanding of your terms. These should include making available to you the records (medical, military, legal, whatever), providing access to other witnesses, and, if you need it, consultation with your colleagues or with nonpsychiatric physicians.

This consultation with other physicians can be quite helpful at times. Also, in some cases, there are various attorneys' files that can be helpful. You should establish at the very beginning that there must be an opportunity for ancillary tests and consultations and that there will be adequate time for whatever number of examinations may be required.

You should establish these ground rules at the time the initial contact is made. They are the same conditions you would require for examining any patient comfortably and securely. You need enough time. And the place is important. It should be quiet, private, and as comfortable as possible.

2. Insist on a pretrial conference. This will provide an opportunity to clarify your report. When you are appointed by a judge, both the district attorney and the defense attorney should be contacted to ascertain if they want any clarification of your views. Sometimes it is a good idea to suggest references in the literature to the attorneys.

By contacting the attorneys before the trial, you as the expert witness may get a chance to become acquainted with some areas concerning which you will be questioned in court.

For example, you may be asked a lengthy hypothetical question. You will feel more secure in court if you have had some kind of orientation about the subject in advance.

One of the first things to be discussed during the pretrial conference is the proper qualifying of the psychiatrist. I do not want to be placed in the position of responding to an attorney asking, "Doctor, tell me about yourself." This lends itself to pompousness.

Insist that the attorney elicit your qualifications question by question. When you do that, you are setting the stage for your relationship with the judge and with the jury. You are establishing that you are not filled with your own self-importance. Be sure that the attorney has a copy of your curriculum vitae so that he can ask specific questions about your qualifications.

3. Once you have been called to the stand, avoid partisanship. As an expert witness, you are expected to give your opinion clearly, to the extent that it can be stated. But do not take sides - avoid any appearance of being an advocate. You should not hesitate to acknowledge the existence of data that may be inconsistent with your overall opinion.

When you have been appointed by the court, it is earier to avoid being a partisan. But when someone else has asked you, it is only natural to identify with the person who consulted you.

Human beings that we are, in a courtroom we feel that this patient has somehow consulted me, so we are likely to start off with a positive countertransference of some degree toward him.

The same sort of thing happens when someone refers a case to you to testify about in court. You start off wanting to please the person who's shown enough respect for you to refer you a case. Be cognizant of this, and you may be able to avoid some of the pitfalls connected with this human desire to please.

4. Avoid jargon. If you think there will be any question about a term you want to use, define it. Occasionally when I am testifying, I find myself using jargon; when I do, I stop and say, "By that I mean ..."

5. Do not talk over the heads of the jury. You should speak as if you are talking to a highschool student. Make sure that they understand what you are saying, because if they do not you might as well not be there.

6. Make sure that the judge is listening. Sometimes you will find a judge busily jotting down notes, and somebody will come up and talk to him while you are giving the "pearl" of your testimony. So occasionally when I am testifying, I will turn to the judge and say not "Do you understand what I'm saying?" but, rather, switching it on myself, "Am I making myself clear?"

Invariably (even when I feel that I may not have been making myself clear) the judge will nod and smile and say, "Of course, doctor, of course." That is one way of getting the judge "pro" you. And it is always good to have the judge looking favorably toward you, for he can be more sensitive if perchance an attempt is made to abuse you.

7. Do not overstate. Do not hesitate to qualify your remarks - for example, "Based on the information on hand" or "Based on the best of my knowledge ..."

And I welcome being asked the question "Doctor, could you be wrong?" My answer is always "Yes, I could be." This is especially true in some personal injury and workmen's compensation cases, where secondary gain and malingering may be factors.

8. Do not be afraid to sit on the fence. I think that this is very important. Even though I may have written on a particular topic and feel comfortable in answering questions about it, I know that there are many difficult areas where a yes-or-no answer does not fit. One of these areas is when you are assessing the criminal responsibility of a mentally retarded person. Does a person with an IQ of 70 have the capacity - the competency - to assist his attorney? Does a person with an IQ of 59? Of 50? There are times, as we all know, when a person with an IQ of 70 will be better able to assist his counsel than a person with an IQ of 120. But there come times when you really have to sit on the fence, and there have been times when I testified that my opinion was 51-49.

9. When they push you, remember that it is the judge, not the psychiatrist, who must make the determination. It will dismay the judge if you sit on the fence, for he will want you to give him a more definite opinion. He will want something specific, something he can either agree with or disagree with, something that will give him a peg upon which he can hang his decision.

Occasionally when I make an equivocal determination, a judge will attempt to push me into a more definite answer. These have often been cases involving mental retardation, although I have also experienced it in other instances. When they push you too hard, just turn to the judge and say: "Yes, your honor, to have to make such a determination is a heavy weight upon your shoulders." It is the judge who must make the determination, not you. Of course, in jury cases it is the jury that submits a verdict.

10. Do not be afraid to say, "I don't know." Judge Bazelon stole some of my thunder in his article, but the fact is certainly true: One of the best answers you can give to a question (when it is the correct answer) is "I don't know."

For example, the attorney is might ask, "Doctor, in what percentage of cases do you find this development?" If you do not know, the accurate answer and the easiest answer is "I don't know." I find that too many of my colleagues will fumble around and come up with some answer that may be quite wrong. So remember that you are permitted to say, "I don't know." You are not supposed to be omniscient on the witness stand.

11. Take time to ponder. You do not have to show your wisdom by responding quickly. You can take time to think. You can take a minute or two minutes. One of the things I do when I am thinking on the witness stand - it is affected, but it lets the court know that I am thinking and not in a catatonic state - is to adopt the position of Rodin's sculpture. I put my hand on my chin. And as long as your hand is on your chin, you can usually think uninterruptedly. You can ask them to repeat the question; even with the repeated question you may still need more time to think.

Once I had the experience of pondering for some time before I brought the whole essence of my thinking to the court. My answer was that I did not know.

12. Look at the judge and at the jury. The reason is that it is the judge and the jury you are trying to convince. You are trying to convince them to the degree that you are convinced - no more, but not any less. So while I am on the witness stand, I look at the jurors and I look at the judge and I look at the spectators in the courtroom. But primarily I look at the jury if it is a jury case, because I want to establish a relationship with them. I believe in what I am saying, and I want to make sure that they know that.

13. Do not let opposing authorities overwhelm you. Remember, you have been qualified as an expert, and you should not feel dismayed if a seemingly more prominent authority is quoted in opposition to what you have said.

On some points capable experts may happen to disagree. So just keep in mind that experts do not always agree. This applies to you even if you are junior on the staff of your institution. You may be called to testify, only to find that the head of your department also has been called to testify and will give a view diametrically opposed to what you believe to be correct. You should not hesitate to say, "On that point I disagree with Dr. Blank" - provided, of course, that you have an appointment somewhere else for the following year!

14. Acknowledge the limits of your opinion. One thing Judge Bazelon has emphasized in his speeches and writing is to make sure to mention the limits of the examination and the opinion, if this is appropriate.

This can be very important. Sometimes, in spite of your initial contact with the lawyers or the judge, you cannot get all the information you need. If there is a possibility that a person has organic brain disease, you may like to have results of psychologic and neurologic tests. You ask for these, but somehow they are not obtained for you. Acknowledge these limitations. Sometimes the circumstances in which your examination was made will have been adverse - you did not have the patient in a nice, quiet room of your office, for example. Acknowledge that.

The trouble with many psychiatrists who go to court is that they feel they are supposed to know it all and have all the information there is. Well, no one has that. One of the questions that has been asked me a few times - a question I. do not mind answering at "all - is along these lines: "Well, doctor, you spent four hours with this patient. Would you have felt more secure in your evaluation if you had spent 10 or 12 hours?" My answer is always "Yes, I would have felt more secure."

15. Do not overkill. I recall a psychiatrist who would go farther and farther out on a limb, the longer he was kept on the witness stand. The longer he was there, the more dogmatic he would become, until finally the limb would break without anyone's having put pressure on it.

One thing that helps me in this regard is a fantasy I bring to mind whenever I testify. The fantasy is that a respected colleague is sitting in the front row of the court listening to everything I say. I want to feel that whatever I say in that court I do not mind my fantasy colleague hearing me say. If you testify in this way, you will feel more secure.

16. Do not try to hide your fee. Whenever you are asked about your fees, do not try to avoid the question. If anything has been established, say what has been established. If nothing has been established, say so. If you are questioned further, do not try to dodge questions to which you may have some answer.

So, while testifying in court may seem at first glance to be an unpleasant experience for a psychiatrist, it can be a very rewarding experience, one that can benefit us in many ways.

For example, it helps you to think on your feet. And that is helpful to psychiatrists, for once we have finished our training much of our practice is concerned with a dyadic relationship with a patient. We have no one to observe our thought processes and our techniques, and as a result it is possible for us to get loose in our thinking. When you have had experience in testifying in court, you are not so likely to get uptight if someone asks you to give a paper at a medical conference or appear on a panel discussion of a controversial topic.

The experience can help you in other ways. You learn about being under fire. It has helped me not to be overly fearful when I have to enter the room of a violent patient; that patient will have a greater propensity for violence if he detects fear in me.

If you can keep your cool and remember some of these suggestions, I think you will find testifying in court both pleasant and worthwhile. And I do not think there is any doubt that an increasingly larger number of us will be called to testify in court in the years ahead - either voluntarily or against our will and maybe even as a defendant in a malpractice suit.

Properly prepared, the psychiatrist should find this a challenging and valuable experience.


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