A Few Thoughts About Cross Examination of A Psychiatric Expert Witness

My teacher and mentor, Dr. Bernard Diamond, pondered the question about the role of the psychiatric expert and other experts in the courtroom. My first public presentation was to the American Criminology Society on this topic, and it has continued to occupy my attention to the present. I believe the courtroom is a special place with special rules that must be understood in order for the most effective presentation of the clinical data to occur. The process is adversarial, which is generally contrary to the experience of clinicians or academicians. Clinicians are used to being trusted and believed without having to explain in detail the basis for their opinions. The courtroom is different; there must be a sound scientific basis for the expression of an opinion (the Daubert or Kelly-Fry cases, for example) and most clinicians are not used to having to defend their opinions in this fashion.

Also, treaters generally do not have the time or inclination to read all of the person's medical records, the depositions, and other investigative information or to meet with attorneys. They may not have large blocks of time to be available for depositions and/or court testimony. Although the treater may know the patient best on a treatment level, the treater usually does not know the patient best as far as the full scope of discovery in the case, only part of which involves the patient and prescribed treatment. In this special circumstance, the person who knows the patient best is the person who has spent the most time and effort getting to know all of the medical records and all of the related records. This is the forensic expert. Furthermore, the treater has an alliance with the patient. The alliance, in my opinion, undermines the impartiality of the treater because it is the treater's job to maintain and sustain the therapy. Saying or doing anything against the patient will undermine the therapeutic process and may be untherapeutic. This then causes the treater to assume the role of defender of the patient, which undermines impartiality. For example, if a treater is presented with new information in a medical-legal context with the potential to cause the treater to change his or her opinion in a direction adverse to the patient-plaintiff's claim, is the treater likely to do so? I believe not, because to do so might harm the therapy.

I often am asked whether or not I am a "world authority" on this topic or on that which is being litigated. Said another way, have I produced definitive research on a particular topic or is there a research I have performed on some of the definitive research on the topic? The presumption is that the academic expert is the best expert for a forensic case, a conclusion I would not come to, based upon my experience. Academic experts are not experts about the process of forensic psychiatry and do not understand the duties and obligations placed upon them by the courts and by the whole adversarial process. Giving testimony and knowing how it is received and understood is different from research. Academicians may be good researchers but terrible teachers. It is necessary to be a very good teacher in order to be able to teach a jury about a highly complex subject in easily understood terms.

A few academicians have this skill; without a doubt. Richard Feynman's CalTech lectures on fundamental physics, which he gave only once in the 1950s, are classic examples of simplicity and explanation on a highly complex and abstract subject. It is perhaps not surprising that when he gave this series of lectures to first-year undergraduates, the entire physics faculty audited his lectures. Fortunately, the lectures were recorded and transcribed.

The forensic expert must be qualified and very familiar with the literature in the field about which he is going to express that opinion in addition to having extensive clinical experience in the field. During more than 30 years, I not only have been a forensic psychiatrist but also a clinical psychiatrist spending about half of my time in clinical practice. The practice of forensic psychiatry has taken me into clinical medicine, not just psychiatry, and I have performed many clinical evaluations in a forensic setting, which first and foremost required an accurate diagnosis. Having performed 5000 or more evaluations means I have performed 5000 or more clinical psychiatric examinations, in which I was prepared to defend my opinions based on scientific knowledge and my clinical experience and training. More than most psychiatrists, my assessments have been scrutinized by my peers. I have learned from them, as have other forensic experts.

Ultimately, I believe forensic psychiatrists and other forensic experts must approach the cases on which they are called as impartial evaluators. The outcome of a case is not my business; I do not win or lose cases. What I am prepared to do, and I believe my forensic peers are also, is to reach an impartial opinion about a person and then defend that opinion within an adversarial context. My advocacy of the opinion, however, is not my advocacy of the person. If new information is provided to me that changes the weight of the medical evidence in such a way as to change my opinion, I will do so, and from time to time this has been the case.

Sometimes the changed opinion is favorable to the side that retained me and sometimes it is not. It has been my experience that a change to my opinion is not always absolute but only incremental, to the slightly greater advantage of the "opposing" party, for example, in terms of need for treatment, but not regarding other issues. Objectivity is an expert witness' stock-in-trade and must be unimpeachable to be useful. I believe that in court my-and any expert witness'-reputation for objectivity is more valuable than the expert who is known to be "a sure thing".

An expert is most efficient when well-versed in the process of litigation. The litigated case is governed by special rules of procedure and method. A medical expert who understands the rules works more advantageously than the medical expert who does not. It is the same in any arena.

Stephen M. Raffle, M.D., a Board Certified Forensic Psychiatrist, has over 36 years of experience offering his expert opinion in Federal and State jurisdictions. Dr. Raffle has consulted for attorneys, insurers, employers and judges. His track record and experience is impressive: over 5000 psychiatric evaluations, 700+ depositions, 150+ trials, a successful clinical practice, teaching career at U.C. Medical School, and Hastings College of the Law postgraduate course "Trial and Appellate Advocacy" for 11 years instructing attorneys about the direct and cross-examination of expert witnesses.

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