The Psychiatrist as Witness

Michael K. Spodak, M.D. 

First contact with a  forensic psychiatric expert may seem like heading into uncharted waters. Forensic psychiatry is probably one of the least understood of the medical and psychiatric subspecialities. Forensic psychiatry is commonly described as the branch of psychiatry dealing with legal issues, related to mental disorders, however, that is an over-simplification of a complex sub-specialty. This article will assist the reader in determining when the services of a forensic psychiatrist may be helpful, how to assess the consultant, and what to reasonably expect from a forensic psychiatrist. 

The Participants

Choosing the Expert

The Evaluation

The types of professionals participating in the legal process are diverse and growing. While the most common participants are probably psychiatrists and psychologists, there is a growing list of other individuals. While the requirements for licensure for non physicians may vary from state to state, one can be fairly certain that a board certified psychiatrist anythere in the country has probably been through a fairly standardized course of training and has met a fairly consistant set of basic criteria.
If the individual you contact spends a fair amount of the inital discussion attempting to clarify the issues and the type of opinions you might be seeking, you are probably off to a good start. If he or she sttempts to clarify the fee arrangement and is able to state an hourly fee without hemming, hawing or stuttering and can estimate the amount of time involved in a particular type of evaluation, this is more evidence that you are heading in the right direction. 
The old adage of "garbage in garbage out" applies to forensic psychiatry. A forensic psychiatric opinion can be looked upon like the seat of a stool which is held up by a number of legs, representing each of the following:
1. HIstory
2. Backround
3. Mental Status Examination
4. Psychological Testing
5. Review of outside Records
6. Interview with other individuals 
7. Laboratory testing including x-rays, blood work and EEg's
8. Functional Assessment

History and Diagnosis

Direct Examination

Cross Examination

The single most important component of a forensic psychiatric evaluation is the taking of a detailed, comprehensive history and exploring many backround areas. In doing an evaluation for the impact of a traumatic event, it is important to have a clear sense of the individuals symptomatic picture and functional level prior to event. Next, it is important to obtain information of how the individual has adjusted following the injury and whether their life course has been detoured or continues to progress in the direction it was taking prior to the injury. 
Prior to testifying, it is advisable that that expert witness and the attorney clarify the legal issues in the areas in which the expert witness is able to offer an opinion. If a deposition of the expert is to be taken, it is helpful to meet ahead of time and review the areas and opinions that one is seeking from the expert. In addition to his or her own deposition, the expert you retain may be a valuable resource  to offer suggestions and areas to explore with the expert or experts from the opposing side. 
It is likely that an experienced expert will be prepared to answer questions that you may attempt to put to him or her and will, therefore, be able to formulate some response. If the opinions expressed by the expert are logical and consistant with the facts of the case, are commonly held mental health and psychiatric principles and do not seem to defy common sense, then a few innocuous questions designed to elicit "yes/no answers" and to point out some areas where the expert may not have interviewed certain people or reviewed certain records are probably the only areas one may want to explore. 
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Expert Witness Checklist

1. Does the expert understand the issue clearly 
2. Does the expert know the applicable legal test
3. In taking history, did the expert ask relevant questions 
4. Does the expert understand the distinction between subjective information
5. Is the expert organized
6. In supporting the opinion, is the expert balanced
7. Did the expert approach the evaluation and assessment with unquestionable belief and naivete, cynical supicion and disbelief of healthy skepticism
8. Did the expert consider and have a reasonable basis to exclude alternative diagnoses and explanations
9. Did the expert restate the history as the basis for an opinion or provide his own knowledge of mental health issues
10. Did the expert use appropriate testing resources 
11. Was collateral and corroborative information reviewed and used appropriately
12. Was the expert an objective assistant or an advocate
13.  Did the expert simplify or complicate the case
14. On cross examination, were the opinions defended appropriately 
15. Were the concessions made when that seemed reasonable and appropriate
16. Did the expert become argumentative
17. Did the doctor become an advocate or remain a medical scientist 
18. Was any opinion expressed which defied common sense