Forensic Psychiatry & its Case Practice
What you should expect from a science and its forensic scientists
Michael Welner, M.D.Chairman, The Forensic Panel
Forensic Psychiatry, Psychology, Neuropsychology, Neuroimaging
Death investigationDisputed confessionTrial competencyTrial in adult courtCapacity to form intentInsanity defenseCriminal responsibilityDuress and influenceInvoluntary intoxication
Justification Battered defendantAssessment of motiveViolence risk assessmentSex offender riskRetardationPresentencingHousing considerationsAlternatives to
incarceration
Forensic Behavioral Sciences – Societal
Relevance
Forensic Psychiatry & the Behavioral Sciences
Achievements: Mental health has matured into a scientific
discipline because of its efforts toward standardization
Diagnoses, standardized per Diagnostic and Statistical Manual (DSM) IV-TR, DSM V coming
Limitations: Contextual application of these standards to
the life cycle of the criminal case is lacking
Forensic Psychiatry – Human Evidence
Examinee – invested litigantFamily, friends, teachers, witnesses, business partners,
coworkers, cellmatesThe evidence – those interviewed – has conflicts, agendas,
& biasesDrawing out information is only one challenge; sensing
when there is more to draw out, and about what, and who from, is another
Reliable human intelligence can prove to be the most crucial element in a case
Quality of interviewing and questioning is pivotalForensic psychiatry’s responsibility: the pursuit of reliable
human evidence
Forensic Psychiatry – Integrated Human Evidence
Forensic psychiatry’s responsibility: integrating human evidence with pathology, physical and toxicology, investigative data
Accessibility of the doctorHearsay exceptionReconstruction of actions and ideas and motives
unavoidableCorroborating and contradicting layers of evidenceTiming and correlation to thoughts and symptomsCommunication - Phone, computers (multiple), emails
(multiple), Facebook, Tweet, TextMovements – Calendar, bank, credit purchases, travel, cell
tower
A Range of Responsibilities …with
attendant Challenges
Scientist – Truth as GoalExaminer – Objectivity as GoalForensic Science – Evidence and Fact-DrivenExpert – Relevant and Updated Knowledge
Scientist - Obstacles to Truth
Cost and time deadlines forcing shortcutsParties protected in non-disclosureNotes not releasedNo mandated videotapingAspirational amidst “different conclusions”Collateral consequences to an opinionPolitical consequences to an opinion
Examiner - Challenges to Objectivity
BiasNo rules for attorney conduct with
expertsOne sided discussionsSolitude
Forensic ScientistChallenging Evidence –Driven
Exams
Adversarial system impedes fact-findingReluctance of witnesses to cooperateOverreliance on self-report exams, testsPoorly preserved evidence
- Tox, computer files, cell phoneInsufficient emphasis on collateral
What is Expertise?
How does a judge tell?All a court will payThe practitioner-academic divideThe clinician-forensic specialist divideThe researcher-forensic specialist
divideRelevant, reliable, valid
Relevant
Relates directly to the psychiatric-legal question
and its context
Reliable
Evidence gathered and assessed by different examiners yields consistent
data
Conclusions from accounting for all available evidence should be similar
across scientists
Valid
Opinion should account for all source evidence in order to reflect what it is expected to address
Relevance + Reliable source material
increases Validity
Forensic Behavioral Sciences - Evidence
No requirement to submit interview notesScant, illegible documentation of
interviewsVideotaping still rare and not requiredGerrymandered interviewRating scales as substituteUnregulated self-reportVariable quality and quantity of
investigative scrutiny
Forensic Behavioral Sciences – Transparency?
No mandated diligence or established thresholdNo access to peers for critical reviewNo institutional discipline despite “independence”
Organizations do not discipline if they share the ideology
Organizations do not discipline their leaders
Reduces probative value of well-established disciplineEnables hired gun work and discourages honesty
Forensic Behavioral Sciences – Quality
Access to evidencePromote corroboration through collateral uninvested sourcesHearsay evidence pivotalThe prejudice vs. probative problem of admissibility
DNA?
Forensic Behavioral Sciences – Quality
Telling a jury the who, what, where, when, why increases confidence and awareness of jury
Uninformed jury does not truly know the case they are deliberatingPsychiatric opinion that limits itself to statements of a self-serving litigant
compromises the validity and reliability of the dataPsychiatrists are discouraged from attempting to corroborate the human
evidence they gather, diminishing the potential of psychiatric evidence
Forensic Psychiatry Consultation
The Process
Diligence and source reviewWitness contactInterviewTestingOversight and Accountability ReportTrial preparationTestimony
Diligence and Source Review
Evidence as the evidence dictatesSearching by necessity
Not path or tox – evidence does not come to youChecklist for accountingReconstructing timeline, progression choicesDeath scene, home - internalizeMap priorities for exam – deep drillDepth and internal corroborationEarly start to ensure emergenceSocial media as a necessary personal windowUsing sources to build witness list
Shooting on Beach
Videotape Pathologist
Veterinarian Dog Dentist
Dog Behaviorist
Evidence As the Evidence Dictates
Experts Rely on Experts
Rampage Shooting
Parents Diaries
Computer
Cell phone records
Witnesses
Evidence As the Evidence Dictates
Witness Contact
After source reviewScientific investigative questions differ from
investigators’Proximal physical contact (neighbors)Proximal chronological contact (cell, email, text, FB)Proximal intimacy (best friends, spouses)No one off limits (speak on their terms)
Witness Contact
Context-related inputEvent-related input (previous victims)Identify bad and biased witnessesAdvantages of M.D.Mechanics of mass interviewDrs. talk to Drs. (get releases to send)
Interview
Prepared in advanceSymptom specific and elaborated
Immunizing against prepProbingAccount for local and historical stresses,
eventsAccount for range of motives
Mad, bad, fad, gonad
Interview
Long by designFacilitates intimate discussion
Deliberate sequence of movements, ingestions
Leverage diligence to dateInvest litigant and prompt memory
Interview
Engage inconsistencies Establish what is not being informedCalibrate to yield, diminish resistanceTiming within interviewIdeally, follow up after follow upVideotape
Transparency instead of observers (chaperons)No note-taking and the rapportValue even when silentDisciplines examiner
Testing
Question specific – otherwise, non-specific findingsDictated by source materialsMay also be dictated by interview
Allow for follow upAllows for more inclusive scrutiny
Corrects some examiner blindnessProjective testing not validated and potentially misleadingSelf report of poor validity alone
Testing
MalingeringNative to every criminal caseNot synonymous with accuracy of historyStill obliged to resolve answers
Interpretation by qualified interpreterCross examine on computer program
Testing
Medical testing underutilizedEarly toxPsych = computer forensics
Communication and private ideas paramountNeuroradiology underutilized and misutilized
Sources & Influences of Bias
Conscious bias undetectable in best-trained expertBetter experts are more capable of misleading (professional malingering)
Momentum of the external influence (political, police)MoneyResearchPublicityExaminer confidenceProcess that demands certaintyProcess that rewards argument for the sake of
argumentIdeological passions
Peer Review – The Forensic Panel
Thirteen yearsOversightAccountability of examiners and peer reviewers
Advantages of non-blind peer reviewComplementary expertisePromoting diligence
Input on possibilities, sources, nature of questions, literatureEnforcing adherence to standardsParallels hospital model
Report
Adequately referencedDriven by the nature of the dataAnswer question posedAccount for diagnoses not given, and whyWritten for consumptionAdvocating an opinion, not a sideFootnoted to ensure reflection of general acceptance
Trial preparation
Challenge theories
Use every fact witness to set up opinion and set up cross
eg, absence of psychosis, symptom specific observations of defendant
Lead in questions for each witness
Cross examination questions sequences for each witness
Need science sophistication to cave in multiple experts
Trial preparation
Plug into opposing expert testimony early, for scientific inconsistencies
Report – what isn’t said as important as what is
Must get opposing expert notes
responding to illegibility
Employ critique for psych testing just as one would for chain of custody or other forensic science protocol
Establish norms utilized for neuroradiology interpretation
Testimony
Adequate planning ahead of timeFactual grasp, no notesKnow what needs to resonateDigestible incisivenessEducate about judgeUse of exhibits as need beMining for cross
Engage early – humint fades, witnesses move Aim for The Last Word Promote complementary investigative roles Protect integrity of exam Seize high road for transparency Promote fact over expertise Hold experts accountable for viabilty of science behind
assertions Hold experts accountable for viabilty of evidence behind
assertions Transcend battle of experts Goal – withdrawal of all mental health testimony
Summary