THE PITFALLS OF EXPERT TESTIMONY
By Michael G. Brock MA, LLP, CSW

Recently the Michigan Supreme Court voted to seriously limit the nature and amount of testimony that can be given by an expert witness.  The essence of these limitations is that an expert may not testify regarding matters which have not yet been introduced into evidence and are not admissible under the hearsay exception rule.  A mental health professional could therefore testify regarding investigations and evaluations conducted in his office, but not regarding communications with school officials, treatment professionals or other parties whose evidence would be more appropriately delivered directly to the court. 

This is a good thing.  It is likely to result in a fairer process to the litigants.  There has been an ever-increasing presence of mental health professionals in the legal arena, the majority of whom display an appalling lack of concern for due process and standards of professional practice.  I am not talking just of those of us who have made forensic practice our specialty.  On the contrary, those of us who practice in the courts regularly are more keenly aware of the need to follow proper procedures consistent with available forensic literature and professional ethics codes.

Unfortunately, the new rules regarding who can testify in the court, or the limits of opinions expressed by these experts, will not change the most grievous errors made by members of our profession.  The greatest damage is done by those who “specialize” in child abuse counseling.  It works like this:

A complaint of abuse is made by the custodial parent, and a Child Protective Services investigation follows.  The CPS worker finds that there is a preponderance of evidence that the abuse did not occur.  Or the case may be referred to the prosecutor’s office, which decides that there are no grounds to prosecute.  A physical exam is performed, perhaps even a second opinion sought, followed by an interview with a team of forensic experts from different disciplines.  All of these produce no evidence.

The custodial parent then seeks a referral to a therapist who “specializes” in child abuse.  The therapist interviews the presenting parent, who reports that the child is being or has been molested by the non-custodial parent.  The therapist notes that the presenting problem is alleged abuse, then proceeds to the treatment plan, which states that the goal of treatment is to alleviate the traumatic effects of the abuse. 

It is important to understand a fundamental difference between the legal and treatment forums at this point.  In the legal forum (as in scientific or research psychology), the entire process begins with a presumption of innocence or a position of neutrality and leads to a finding of fact as a result of evidence presented (followed by an application of law).  In the mental health treatment forum, there must be an assumption of facts not in evidence (diagnosis and treatment plan) before treatment can begin.  Thus, after noting that the presenting problem is alleged abuse, the therapist states that the goal of treatment is to help the child understand and deal with the abuse which is presumed to have happened.

Despite all of the legal processes preceding the entry of the child into therapy, which concluded that there was an absence of evidence of abuse, the therapist has found that the abuse has occurred and must be treated based solely on the allegations of the presenting parent.  The treatment professional in most cases is not even aware of the (Michigan) Governor’s Task Force, Protocol for Interviewing Children Suspected of Sexual Abuse.  This is despite the fact that Michigan Law requires (Michigan Child Protection Act) that these procedures be followed by all state employees in such cases.  Private practitioners can argue that they are not bound by this law, but this Protocol represents the state of the art in forensic practice and all mental health professionals have a duty to perform up to currently accepted standards. 

The records of treatment professionals reflect that they generally do not follow Protocol in most cases even if they are aware of it.  In the very first paragraph of the introduction, the Protocol states that mental health professionals should not perform forensic interviews and treatment with the same client.  Ignorance of and behavior contrary to this admonition are far and away the most significant factor in false arrest and conviction, and the alienation of children from their non-custodial parents, but there is no specific law against non-compliance by private therapists.

It is not at all surprising that mental health professionals using a lethal combination of treatment and forensic techniques usually discover in the course of “therapy” that there has been abuse.  The presumption of guilt has become a self-fulfilling prophecy.
The mental health professional often does not appear in court. Their evidence is frequently in the form of “To whom it may concern” letters, or letters written to the attorney of the custodial parent.  These letters tends to be brief, and to assert that the child would be better off not seeing the non-custodial parent at all, or seeing this parent only in a supervised setting. The court can usually be counted on to err on the side of caution, allowing several months to pass before normal visitation is restored and, thus, the bond with the non-custodial parent to be severed or permanently damaged.  By the time the matter works its way through the courts, the alienation of the child from the non-custodial parent is complete.

When the professional is required to make an appearance, most attorneys have a very difficult time rebutting their testimony, which by this time has also become the child’s testimony.  Moreover, the child is not lying.  He believes by this time that he has been abused.  Does counsel attack the child?  Of course not.  The only effective way of showing that the evidence has been tainted is by examining the therapy records, and, even if he has them, the attorney usually does not know what he is looking for.  What he should be looking for is evidence that the process is tainted, but to do this the attorney has to know more about proper forensic procedures, or hire someone who does.

The true court in this case is the court of the therapist, with the presenting parent acting as the prosecutor and handing down an indictment, and the therapist presuming the guilt of the accused party, whom, in most cases, the therapist refuses to see.  But the presumption of guilt is the prerequisite to performing “therapy” to heal the child of the abuse.  The findings of this court are rarely reversed, and official legal proceedings are but a footnote to the process.  Moreover, this legal expert/mental health professional needs no authorization from the court.  Therefore, the recent decision made by the Michigan Supreme Court to limit mental health testimony will not affect his procedures or the evidence he provides.  Again, this evidence is not excluded by the new evidentiary rules.

How does the court discern which professional is a gift from God and which is the Angel of Death?  I believe the answer is in education and dialogue.  All of the cards should be on the table.  There is no reason to keep secrets, stack evidence, or talk in psychobabble.  No “expert” should render an opinion about someone that they have not seen, especially on so crucial an issue as a child’s relationship with a parent, or labeling someone a child molester.  There is no reason that an expert cannot evaluate one party, or one party and a child, as long as no recommendation is made that would require a comparison to the other party.  However, this can be a tricky tightrope walk.

Case preparation is also a valid and underused service that mental health professionals can provide, perhaps most appropriately in criminal cases, or parental termination hearings.  A competent expert can destroy the work of an incompetent expert without ever entering a courtroom or preparing a report.  This can be done, and I have done it, by examining the evidence presented by professionals to see if proper forensic procedures have been followed.  These procedures are more legal than psychological, and should be easily understandable to the legal mind.

Without question, however, a mental health professional’s most valuable contribution in family court is as an independent evaluator, appointed by the courts.  The downside to any expert being hired by one side or the other is that if his or her findings are negative, they are unlikely to be introduced into evidence.  That professional is also unlikely to be hired by that attorney again.  Most importantly, the mental health professional has no valid opinion to render on ultimate question of custody because he has not had the opportunity to observe the interaction of the parties.  Ultimately, relationship dynamics determine the best interests of the child, not specific data about one parent or the other, or even that parent’s relationship with the child.  Custody evaluation is a comparative study.

In a recent episode of Law and Order, a program that seems to square with my experience of court, the prosecutor realizes that he has created a dilemma for himself by having a mentally ill killer certified as competent.  Now he wants to prosecute the HMO executive that put this dangerous man back on the street without medication or supervision.  However, his own witness has said that the man was competent.  He discusses the matter with the chief DA, saying that if this psychiatrist had not done what he wanted, he would have kept looking until he found one who would.  His boss said, “That’s called prosecution.” 

Is that legitimate legal practice?  Or is it a hired gun mentality in which the prosecutor, by his own admission, was not seeking truth, justice or competent psychiatric testimony, but a professional of little integrity who would do what he was paid to do?  If this is the caliber of person that the court wants influencing legal decisions, then the integrity of the court’s processes will continue to come under attack.  Moreover, the court’s opinion of mental health professionals will become a self-fulfilling prophecy.  By refusing to employ mental health professionals of low integrity, the court shows more self respect and commands the respect of the citizenry, which is as it should be.

The work of mental health professionals needs to be reasonable to the legal mind.  But as we must meet the accepted standards of forensic scrutiny, legal professionals must genuinely seek to be part of a truth finding process—to seek justice, not just their client’s interests.  This is not an easy position to take for one trained and practicing in our adversarial judicial system.

Finally, it should be illegal for any mental health professional to perform treatment with a child suspected of being abused until there has been a forensic determination that child abuse has occurred.  If the allegation comes up inadvertently in the process of therapy, the therapy process should cease until the legal issues have been resolved; or, as Stephen Ceci suggests, supportive therapy could continue, as long as it is not investigative in nature.  But treatment as a means of gaining leverage in a legal proceeding is contrary to ethics codes, Michigan Protocol and good standards of practice in every state.  Ultimately, bad mental health practice makes horrible law. 
 

 
 
False Allegations
Truth in Justice