The Role of the Psychologist as Expert Witness

I first started conducting expert witness reports approximately 10 years ago, these started with cases related to personal injury mainly from road traffic accidents and work place injury. They then evolved into forensic reports for the courts. The latter Initially, represented a slightly unnerving prospect since inevitably a higher authority is relying on my own personal testimony, prognosis and opinion in terms of what may relate to either a compensation settlement that has implications for the ability to manage a life or indeed a sentence, “custodial or suspended” that may directly effect an individual’s life and thereby future. I guess in this way it carries a huge importance if we as psychologists are to be taken seriously.

As time has progressed these cases have also developed into personality assessments for courts, where there may have been cases of “diminished responsibility” and “intelligence testing” where the defendant may have had mitigating circumstances in their capacity to stand trial and competently give evidence. On reflection it has been a fulfilling aspect of my work and hopefully in some small part contributed to the justice of the British Court system. On balance the duration of assessment varies depending on the questions posed by the retaining lawyer, and it has certainly brought me, personally, in touch with many interesting people and predicaments. This article aims to illustrate the role of the Psychologist as expert witness and also identify some of the potential conflicts that may exist and the clear boundaries that need to be drawn in my position.

In terms of the psychologist’s duty to the court the use of reliable and valid psychometric instruments in assessment is essential. Nevertheless, there is the possibility that claimants particularly in personal injury cases may exaggerate symptoms in order to over optimise potential compensation in their favour, otherwise known as malingering. This unfortunately is a problem that can occur when quite often claimants feel as though they have been adversely effected by the perceived actions or non-actions of others. It however, in my experience, usually has the reverse effect if employed, “truth is the key”.

In general, I find the vast majority of claimants to be honest in their responses but sometimes there are occasions where exaggeration becomes so obvious that one would wonder how the individual managed to travel to the assessment in the first place. Their symptoms would indicate that they should more readily be hospitalised (immediately), let alone being able to give an objective and accurate interpretation of either the event leading to their injury (and the claim) or indeed any cognizant account of their background history. The impartiality of the psychologist at this point is crucial, I frequently remind and bring to awareness at the beginning of assessment and prior to specific instrument completion the sensitivity of the tools being used, the implications of exaggeration on their potential claim and the need for truth.

In some cases, even an assertion of amnesia relating to the event may occur. Sometimes this may be a genuine response (in the case for example of post traumatic stress disorder - PTSD) although on occasion it might simply represent a method of absenting claimants from what may be a testing and challenging interview process. This can be, irritating and unnerving as an assessor, especially if I have an inclination as to “what on earth might be going on”. It has the feeling of a falsehood that may have “grabbed the legal system” and enabled people to “jump on the band wagon” to compensation and potentially profit!

The Diagnostic Manual for Mental Disorders-5 recommends that malingering should be strongly suspected if any combination of the following four conditions is found:

1) The person is referred by a lawyer.

2) There is marked discrepancy between the person’s claimed stress or disability and the objective findings.

3) Lack of co-operation.

4) The presence of an antisocial personality disorder (which may be tested for in forensic cases where the history warrants it).

The first point is particularly interesting since most referrals come from lawyers, and sometimes, I will ask myself if someone in this position would truly have the state of mind and organisation of thought to go through this “hellish” process. As mentioned above, even seeing a lawyer (in some cases) therefore raises a suspicion!! I would in many circumstances rather see a priest!!

Although a strong suspicion may be a useful start in making a diagnosis in a medical setting, it is too speculative to be of much use in forensic or psychological settings. In the medical setting, accurate diagnosis is necessary as a foundation for effective therapeutic management (Overholser 1990). Triers of fact in judicial venues are more interested in veracity or truth-telling at a point in time in relation to such issues as sanity, competence, specific intent and credibility. Credible expert testimony regarding the probability that these conditions are being faked or malingered therefore requires the support of robust psychological test data (Schretlen 1988).

On the personal injury front, the injuries that I have encountered are quite naturally mixed and vary in their persistence and intensity. I recall the assessment of a young man who had become paraplegic as a result of a road accident involving an uninsured driver. It was evident that his lack of mobility, the fact that the family had to move home to a bungalow in order to accommodate his needs and that all sexual functionality had been lost (leading to the end of a seemingly healthy relationship and the sense of loss associated with it) would in most cases lead to the assumption that he would answer questions and psychometric instruments in a way commensurate with his injury. In other words, the medical veracity of his condition would seem to be without doubt! But for some reason, for him, I don’t think any of this really sunk in! All this occurred as he moved around in his wheelchair offering and insisting to give me a drink and breaking two coffee cups due to his physical incapacity in the process.

As I worked through the 4-hour process of assessment it became clear that he appeared to be in almost complete denial of any problems that currently existed in his life. His profile would suggest, that this was someone continuing with life in the way they always had, tending to suggest that any admission of physical limitation or psychological injury would make “real” the level of the predicament that he was in, and subsequently lead to a sense of “personal devastation” in terms of identity and capability. The psychological component and admission of it could for him have also led in some way to the sense that he was “weak”!

I recall discussing the possibility of psychological treatment (since this was part of my instruction by the retaining lawyers) in order to aid, in some form, but this was not surprisingly declined. It and he, on the other-hand could of course be an example of extreme resilience in a major life changing situation and this should not altogether be discounted, but I somehow just couldn’t believe it, unless he was a true hero.

Either way, it is important to consider and draw attention to the possibility of future deterioration in mental health with a client so young, there is the future to be taken into account, whether that be 10, 20, 30 or more years hence, in which the psychological manifestations of his injury could compound leading to a sense of regret about the path of his life and the missed opportunities that occurred. I just wished he could possibly have recognised this at the time, but it may come in the future!

In other situations, the role of the psychologist in assessment could if not “checked” become blurred. For those clients suffering PTSD there is the possibility that the recounting of their “story”; the accident, the attack, the war (as encountered with asylum seekers) may be relived in the form of “flashbacks” in the assessment process. Some may talk of the “loss of loved ones”, death, and the immediate “threat of death” to themselves in circumstances that stretched way beyond their ability “to control”.

On occasion, the interviewee may reach a point where “emotional breakdown takes place”, the risk of this and their potential well-being needs to be considered at all time, care, empathy and compassion need to be provided within the framework of impartiality. At this point, I as a practitioner, am drawn to remember the “core conditions for therapeutic change” of empathy, congruence and unconditional positive regard (Rogers 1957) without actually utilising them from a therapeutic change perspective. This is not our role and may lead us to a sense of paralysation!!

On several occasions it has been the case, that the process has simply been “too much” for a person to manage in one session, noticing the signs either physical, emotional or psychological that may offer clues to this impending state is important. Interview, cessation therefore takes place in a sensitive and gentle way before alternative interview time can be arranged. A good working relationship is therefore required between psychologist and lawyer in order for the process to reach completion with adequate patience on all sides. This specifically involves the patience of the psychologist who may be loaded with a busy work schedule!

I have encountered the above in the case of asylum seekers, one I recall from Darfur in Sudan and another having fled the potential threats of the “Islamic Revolutionary Guard” in Iran. Although both different in their nature, the threat of imminent death to self and / or others was present. The client from Sudan had witnessed the destruction of his village and the killing of several villagers including family members by the “Janjaweed” militia (that operate in Western Sudan and Eastern Chad). It was clear in this case that the presence of Post Traumatic Stress Disorder (PTSD) had persisted for several years, the client reported nightmares, flashbacks on a daily basis and a sense of separation and loss of his family who resided in a refugee camp along the border. It is sometimes difficult to remain detached from their plight, but sadly that is what we must do as psychologists in order to maintain an objective opinion, which the courts require!

On the one hand this client had hoped for asylum in the United Kingdom along with his family, and on the other he feared the possibility of being returned to a country and region where his life was at high potential of risk. The difference in language (since assessment was conducted through an interpreter) made it more difficult to “pick up” on the precise essence of the interviewee’s condition, however sensitivity to the tremor in the voice, emotional presentation (tears) and the need to halt the procedure for the client’s short and medium term safety seemed important.

All this “stuff ”, would highlight the need for a high quality interpretation service conducted in continuous fashion with the elimination wherever possible of potential bias that may incur, due to the shared cultural background of the interpreter and the client. Since it is largely their word and the translation that we are provided with that leads to wherever possible the genuine truth (we see those beautifully constructed interpretations at the UN, but these one’s, I am afraid are “often” not the same). In these circumstances the potential risk of suicide needs also to be evaluated and reported to the necessary care team to minimise risk to human life. How often interpretation services may lead to this sort of bias I don’t know, but understanding and acceptance of it is significant in creating an either balanced or imbalanced report!

The client from Iran was different, in his case he had fled his country after forming a relationship with a Christian woman, he, originally a Muslim, “had converted”. A family member had reported this to the authorities and he was rapidly via an, “agency” rushed out of the country, since the general belief was that religious conversion under the Revolutionary Guard warranted “execution”.

He made his way over several months and via many states by night-time lorry (being packed into the payload with others and a mixture of transported goods). The journey was uncomfortable to “say the least”, at times so he told me, “freezing cold”, at others “boiling hot” and the treatment by various authorities, harsh.

Eventually, this client reached Calais, where he spent some time living in “The Jungle” which was described by Human Rights Watch (2017) as “Like Living Hell”. He reached the United Kingdom where asylum was sought, the feeling of loss and separation was evident in his presentation and awareness and monitoring of his presenting state via interpreter throughout assessment was necessary again to ensure safety. These two examples give some of the reality of the path that the psychologist as expert witness needs to tread, the maintenance of impartiality but the demonstration of appropriate care for the “person”. How is it possible to balance these? It is a simple question but probably a more difficult answer!

In my role as an expert witness, I have also been called upon to give evidence in a particularly disturbing road rage incident in which a driver who was seemingly on his way to work as on “any other day”, like we do, was provoked by tailgating along one of Southern Britain’s motorways.

To cut a long story short, the event led to an altercation in which a previously hardworking and “upstanding” member of the community delivered a punch to his assailant of such veracity that it resulted in the death of the incumbent.

The question arises as to whether this was a deliberate act of violence or through provocation resulted in what many of us would have felt that we needed to do in order to protect ourselves from extreme provocation. The prospects were not particularly good but through in-depth interview reliable personality testing and character witnesses from his employer the custodial sentence was reduced to the minimum level that it could have been in the circumstances.

Indeed, I recall the deep remorse that was encountered. He cried throughout his custody at the police station and was unable to hold any food down for a period of three days. This was surely not the response of a genuinely violent man and it seemed that the judge and court took this into account during the sentencing procedure. So although the role of the psychologist in court often “does not serve a central part” of the proceedings, it nevertheless carries a weight with it that is given due consideration in the final adjudication.

I have found that, psychological assessment and the progression of the legal process do not necessarily flow in the same timescale. The assessment is a reliable measure of the client’s condition at a specific point in time and it is often likely that the prognosis and diagnosis may alter as trial dates start to emerge, frequently these may be anything up to 2 years or so in the future. This is specifically the case if the client has undergone a course of treatment in order to address the psychological issues and their cause.

The psychological treatment process represents another delicate issue in that although many of the presenting symptoms of PTSD or another condition may have relinquished it may not be in the “innate” interests of the claimant to state or acknowledge that “improvement” has taken place since this would render the effects of their claim potentially redundant, inadmissible or reduced. This particular aspect can lead to frustration, “why not, if you are ill”, get help, don’t wait for money, that may not come your way! Or otherwise are you really that ill in the first place! It leads us generally, in life to think carefully about what is most important “or not”! After all there are some very good practitioners out there that will enable you to resolve the underlying problem and enable you to move on without wasted years and often unnecessary torment.

There is also the possibility that the repetitive reliving of events whether in asylum cases or personal injury may exacerbate the trauma related issues that the claimant may be experiencing, this occurs in the case of medical examinations, for personal injury claimants that may often be painful and also act as powerful reminders. Of the original event I have found on several occasions that the claimant may in retrospect wished “never” to pursue the legal action had he or she been aware of the additional “trials, examinations and retributions” that they would encounter before a trial date had even been set. I just have to sit there do my job and “listen intently” to what is going on for them.

A refreshment and review of all the relevant information is required in the run up to a court appearance. Inevitably with time having passed this can be a challenge in terms of the particular nuances of the assessment meeting, notes relating to the client’s presentation and timing of emotional reactions during the course of interview and associated triggers leading to them becomes an imperative in terms of conveying the emotional state of the claimant when directly asked in court. If a claimant’s presentation during this time has changed either in terms of improvement or deterioration, another meeting with the claimant’s solicitor may be required and also pre-trial conferences with the retaining lawyers concerned.

In the cases of asylum and immigration, if court appearance is not required there can be the tendency for lack of information regarding the case outcome and so from this perspective the psychologist may never fully understand the implications and outcome of the work carried out. Being able to separate from the report and develop an acceptance at this stage is therefore useful otherwise one can often be left with a sense of “what did it all lead to and where did it go?” i.e a sense of non-completion. However, in the long run I feel that leaving this to the court to decide and placing the outcome psychologically in it’s hands to be an appropriate and useful perspective to take.

From a psychologist’s perspective the chances that you will prepare for the role of the expert witness and then step into the courtroom to give testimony are basically slim. Most civil and criminal trials are settled by negotiation and research indicates that for every 15 or 20 cases that the expert witness prepares, he or she is likely to give testimony in only one (Blau 1998). As mentioned this can be disconcerting to some psychologists who more than likely experience a sense of incompletion. In reality, justice and the promotion of human welfare are probably better served when the expert’s work results in a conclusion before a trial commences. In this way expert testimony, available to both the plaintiff and defence in criminal matters often provides information that contributes to pretrial settlements.

At this point the retaining lawyer may decide that the results are not useful for the pre-trial strategy and the expert is simply thanked, paid and not listed as a witness. Under these circumstances the expertise of the witness is privileged and may not be revealed to anyone without the explicit permission of the lawyer who retained the report. So much of the psychological process of assessment can remain hidden and the work that was done merely disappear into the ether.

If a case remains unsettled a trial will commence in which an allotted period of time is prescribed, this time is necessarily approximate and an experienced expert will understand that these periods are flexible. Some are inevitably settled on the courthouse steps, but nevertheless it is important to recognise that the expert witness forms a “relatively small part” of the procedure although an important one. The procedure will inevitably follow a specific order but judgement and decisions may often be deferred by the presiding judge.

In terms of preparation and to avoid any potential mishaps it is highly important that the psychologist as mentioned arrange a pre-trial conference with the retaining lawyer before the court appearance. During this time all the following should be determined before the witness is called to the stand.

1) Questions to be used in qualification

2) Sequence of questions and expert’s responses in the direct examination

3) Hypothetical questions the lawyer is likely to pose to the witness following direct examination.

4) The limits of the psychologist’s findings

5) Probable approaches to be used by opposing counsel during cross-examination.

6) Something about the demographics of the jury members.

7) The presiding judges style and special expectancies

8) Any special limitations the physical environment of the courtroom may pose for presentation of charts and other visual materials.

So overall my work as an expert witness has been an interesting and fulfilling experience, in some ways I hope it has had a fair and positive impact on the cases of the very interesting individuals that I have met. I hope that it has enabled the courts to decide on a satisfactory conclusion for those concerned. In addition, I have found that it is important to remain humble in one’s opinion and leave the decision making to the higher authorities concerned, acknowledging that on some occasions the impact of the work may never be truly realised. Remaining patient in the fact that a sense of non completion may often be the case!!!

References

Blau, T.H (1998) The Psychologist as Expert Witness. John Wiley & Sons, New York

Overholser, J. (1990) Differential diagnosis of malingering and factitious disorder with physical symptoms. Behavioural Sciences and the law, 8, 55

Rogers, C (1957) The Necessary and Sufficient Conditions of Therapeutic Personality Change. Journal of Consulting Psychology, Vol. 21, pp. 95–103.

Schretlen, D. (1988) The use of psychological tests to identify malingered symptoms of mental disorder. Clinical Psychology Review, 8 451

Contact Details

Dr Andrew Hale

CPsychol AFBPsS

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Dr Malgosia Kwilman-Klelund

CPsychol AFBPsS

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Surrey Psychologists

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www.surreypsychologists.uk

Tel no: Dr Andrew Hale 07801 762833

Tel no: Dr Malgosia Kwilman-Klelund 07770 554 016