Practice of Forensic Psychiatry
Conceptual Framework
What is the question? What is the rule? What are the facts? What is the reasoning?
Ordinarily, a person may only testify about facts personally observed. The expert witness, however, offers opinion testimony based on hearsay. This is allowed because the expert witness has the training and experience to interpret data that lay jurors would otherwise not understand. We will discuss modifications of the governing rules recently laid down by the US Supreme Court in Daubert, which have not yet been formally adopted by the Court in California. However, even when the expert witness presents what would otherwise be inadmissible testimony, it remains up to the jury to determine the weight and credibility to be afforded such evidence. The psychiatrist working in the forensic setting must be objective, thorough, and competent. She must explore alternative explanations for her own observations and conclusions. The interview must be thorough because there may be no second chance. A forensic psychiatrist does not sell opinions. Rather, she "rents" a set of skills that include (1) information gathering; (2) data organization and interpretation; and (3) communication.
There is no general forensic examination. All are targeted to answer a specific question. A forensic examination is preceded by discussion with the attorney about the law, the case, the consultative question, and who will pay. The examiner then reviews the relevant records. At the interview, she obtains informed consent and watches for warning slippage throughout the process. The interview starts open-ended before going to narrow questions that target specific areas. The examiner must employ a strategy to detect malingering, explore alternative explanations for symptoms, do a complete mental status exam, make a multi-axial diagnosis, and explores for events which might break the chain of causation. The examiner may advocate for her opinion - but not for the client.
All opinions require reasonable medical certainty and must be based on fact, supported, whenever possible, by quotes and referenced corroborating data. When testifying, the expert pauses to think before answering and never answers questions she does not understand or which do not have answers. She is brief, direct, and resists the temptation to lecture, debate, argue or use technical jargon. Her reasoning process includes an assertion of the law governing the question to be answered followed by an explication of relevant facts applicable to the determined time frame and ending with a deductive inference which logically flows from medical and legal understandings that clearly answer the question posed.
A treating doctor should not be the expert witness. Treating doctors rarely seek third party corroboration of claims. Experts owe no duty of loyalty or best interests to the claimant.