The role of the forensic psychologist as an expert witness in court proceedings may involve the provision of a report to all or some of the parties addressing specific matters of concern, and may be based upon review of documentation provided to the expert. An expert may also offer opinions about reports previously submitted by other professionals. These tasks may be undertaken independent of or coupled with actual assessment and interviewing of an individual or individuals who are party to the proceedings. Further, in some instances an interpretation of administered psychometric measures may be provided in isolation from any other involvement with the case. Though often of significant importance to the case, such expert reporting involves a much reduced scope in providing an expert opinion. As in the above example, the requirement to provide court testimony may centre around reporting that is of a technical nature concerning some psychological issues relevant to the case without the requirement to assess an individual directly or even via a paper-based analysis. The expert forensic psychologist may also be instructed to provide intervention work with individuals involved in proceedings or post-adjudication with a requirement to evaluate treatment change and report back to the court. This may occur more often in care proceedings, where, at the conclusion of the hearing, an individual is not required by the court via, for example, a probation order, to undertake specific offence-related work. In some such circumstances, the expert may be instructed to deliver intervention work, for example, in relation to safeguarding as a protective parent, and subsequently evaluate change or undertake the post-treatment evaluation without having directly provided the intervention work. Further, the expert witness may be required to engage in professional’s discussions and meetings to clarify matters or address areas that the other parties do not have the requisite expertise to address (Case Study 16.5).
CASE STUDY 16.5 PARENTS PUTTING KIDS FIRST© INTERVENTION
Forensic psychologists in private law cases often assess parents who have entrenched and seemingly intractable differences of opinion with regards to supporting the involvement of both parents in the lives of their children. A parent’s negative view about their ex-partner may significantly impact upon their judgement as to whether contact between the non-resident parent and the children should occur. Within these assessments the caring parent may experience such negative feelings toward the non-resident parent that they begin to entertain thoughts or express views that the other parent is an emotional, physical or even sexual risk to the children. In such circumstances, a comprehensive psychological assessment of both parents is often required, and in various circumstances the children as well. This is needed to offer an opinion as to whether the behaviour of either of the parent has exposed the children to risk of harm or negatively impacted on their future adjustment and potential for forming secure adult attachments (Wilcox & Baim, 2015). At the conclusion of these proceedings, the expert witness was instructed to undertake an intervention programme with the parents described as Parents Putting Kids First (PPKF) wherein each parent had the support of a registered, chartered psychologist. This is a non-adversarial and non-confrontational approach that promotes four basic principles: first, separating the people from the problem; second, focussing on the parties’ shared interests, not their different positions; third, creating options that both parents accept as being in the best interest of the child; and finally, viewing the other parent as an active problem solver rather than an opponent (Drayton & Wilcox, 2013). This facilitates negotiation, encourages parents to give credence to concerns raised by each other and works toward outcomes that both can hopefully agree on to maximise their child’s wellbeing and future security. Such interventions can give rise to opportunities that can be developed with the agreement of both parents, enabling more normal contact between the children and both parents to be established.
16.6 PROVIDING AN EXPERT OPINION
When offering an expert opinion, either in an oral or a written form, a court appointed expert must be prepared to acknowledge issues about which they do not feel confident to provide an expert opinion. This may occur in circumstances where the forensic psychologist does not have the required knowledge or experience, though there may be occasions when the expert can provide a qualified answer, within which they must state their degree of confidence in the response they provide for reasons they may be asked to elucidate upon. Further, there are occasions when an expert may be asked to offer an opinion about a matter about which they are not sufficiently apprised. As an example, the expert may have observed the behaviour of an individual or read documents about them though not undertaken a comprehensive assessment of this person. In such circumstances, the expert may acknowledge that their confidence in the opinions they give is less than might occur in circumstances where a more thorough assessment was undertaken. As an example, it may be that an individual involved in the proceedings has been assessed by another expert, though the forensic expert has been asked to comment about some aspects of their presentation, based on his or her observations. While the court may well value this information, it may be appropriate in such circumstances to largely defer to the opinion of another forensic psychology expert who has actually engaged this individual in interviews, administered psychometric measures, discussed the issues with informed colleagues or undertaken a more comprehensive review of the relevant documentation. Case Study 16.6 illustrates an example of an expert being requested to report upon aspects of another expert’s assessment.
CASE STUDY 16.6 SECOND OPINION REPORTING
A second opinion psychological report was requested by the judge where an earlier psychological assessment had concluded that the defendant had deliberately sabotaged the assessment by providing inconsistent, even conflicting information on the psychometric measures administered. The report had concluded that the defendant had behaved in a dissimulating and untrustworthy way during his assessment, though the defendant asserted that this was not the case. On reviewing the defendant’s file, including the report produced on the psychometric measures, there were indications that the defendant’s responses on the Minnesota Multiphasic Personality Inventory (MMPI-II:RF; Ben-Porath & Tellegen, 2008) appeared to support an interpretation of intentional misrepresentation in his pattern of responding. The second psychologist noted that other than this measure, there was reasonably good internal consistency across measures administered, interviews undertaken and documentation reviewed.
Prior to the administering of this measure the examinee was requested to endorse the items by pencilling a space corresponding with “true” or “false” for each item. However, the second psychologist noted that, in his experience, occasionally respondents misunderstood the instructions given to them and placed a mark “scoring out” the incorrect response. As such, in accordance with the instructions given by the first psychologist, it appeared to him that the defendant had endorsed a response when in fact he had rejected it by placing a line through it. To check this alterative interpretation, a brief item analysis was conducted to examine what the individual’s likely response would have been where this unintentional reversal of responses had taken place. The whole measure was rescored changing every “false” to “true” and every “true” to “false”. As a result, scores that previously had shown elevations on the lie scale, marked psychopathology and poor coping abilities, were now replaced with normal reporting levels in these areas. The clinical scales were now consistent with the defendant’s character, as described in the case documentation, clinical interview and other psychometrics. This was a specific issue relating to the credibility of the defendant’s testimony, which had the effect of significantly impugning his character. However, when a judgment was made in the case, the court took account of the revised scoring of the test and discounted allegations of deliberate dissimulation relating to this aspect of the evidence before the court.
A forensic psychologist expert witness may also be employed to assess individuals who are detained under the Mental Health Act (1983) in a psychiatric
facility, for example, providing a second opinion for mental health review tribunals. Such cases help to determine whether a patient involuntarily hospitalised or “sectioned” (held under the specific provisions of a part of the Mental Health Act) should be discharged, transferred to an alternative hospital setting where appropriate treatment is available or be offered a reduction in levels of supervision. This is likely to involve meetings with the patient and various members of their multidisciplinary care team (MDT), together with a review of their clinical records. The assessment takes account of their past behaviour of relevance, current clinical presentation, and risk considerations that they might present in the future.
16.7 GIVING ORAL EVIDENCE AT COURT
Of key importance, the expert in any legal proceedings must offer an objective and balanced opinion, taking account of all relevant information, up to the point in time when they are questioned in court. Appropriately, new information may lead an expert to revise their opinions about some matters where subsequent documentation received or key behavioural or circumstantial changes have been reported upon, that could influence the views of the expert. An expert must be prepared to amend his or her opinions about matters before the court, where documented changes or new relevant information is offered in the case documentation and is accepted by the court.
Before giving evidence in court, the expert is required either to take an oath or to make an affirmation that does not have any religious connotations. However, both the oath and the affirmation conclude with a statement, “that I shall tell the truth, the whole truth and nothing but the truth”. Addressing the court varies slightly depending on the level and type of proceedings that the expert is involved in. The judge or adjudicator should be addressed according to their position as a judge and the court within which they sit.
Known officially as Lords Justices, a judge who sits in the Court of Appeal is known as the Lord Justice of Appeal. They are Privy Counsellors and are styled professionally as, “The Right Honourable Lord/Lady Justice {surname}” sometimes shortened to “Lord/Lady Justice”. Appeal Court judges wear black silk gowns and court coats (or bar jackets) and short wigs during criminal cases and the black civil robe with gold tabs for civil cases. Judges of the Appeal Courts should be referred as “Your Lordship/Ladyship”. High Court judges, who sit in the Crown Courts, are not normally Privy Counsellors and are therefore referred to as the “Honourable Mr/Mrs Justice {surname}” and should be addressed in court as “Your Lordship/Ladyship”. High Court Judges usually wear red and black gowns in Crown Court settings and are sometimes referred to a “red judges”. High Court judges presiding over civil cases wear the civil robe introduced on 1 October 2008, with red tabs at the neck of the gown and no wig. Circuit judges deal specifically with criminal or civil cases, while some are authorised to hear public and/or private law family cases. Circuit judges usually wear purple or violet robes, and are sometimes referred as “purple judges”. When hearing criminal cases, circuit judges wear a red tippet (sash) over the left shoulder. They are referred to as “His/Her Honour Judge {surname}” and are addressed in court as “Your Honour”. District judges are full-time judges who deal with the majority of cases in the county courts. They are assigned on appointment to a particular circuit and may sit at any of the county courts or district registries of the High Court on that circuit and are addressed as “Your Honour”. Magistrates (also known as justices of the peace) are volunteer judicial office holders who serve in magistrates’ courts throughout England and Wales and are addressed as “Your Worship” or “Your Worships”.
In our experience, confirming the name of the judge and the title to be employed, via discussion with one of the legal representatives, is a helpful step for any expert to take prior to entering the courtroom. The legal representatives before the court who, in sequence, ask the expert questions about the report or testimony given may be referenced either as “counsel” or by the appropriate title, along with their surname (e.g. “Mr Smith”) when addressing the judge.
The process of giving oral evidence usually involves three stages: examination in chief; cross-examination; and re-examination. In most cases examination in chief will begin by being called by the counsel who first instructed the expert – this will be the expert’s oral testimony. Cross-examination will be led by counsel who represents other parties who may disagree with the expert’s evidence or the conclusions of their report. Often in family law cases, it is not uncommon to have five or six opposing counsel, each representing the mother, father, local authority, child’s guardian for each child, and any other members of the family seeking residency or contact. The re-examination is usually led by the counsel who originally called the expert and will focus on questions to clarify their evidence. Last, at the conclusion of the expert’s oral testimony, the judge may choose to ask further questions before releasing the expert from the proceedings. In complex cases, it is not uncommon to present oral evidence spread over one to two days.
When giving evidence, it should be understood that, although the expert may be called by the legal representation of a number of individuals who are party to the proceedings, the questions should be viewed as being raised on behalf of the judge. Therefore, all responses provided by an expert witness should be addressed to the judge and not counsel. This is facilitated by positioning the body to face the judge and turning to accept questions from the examining counsel and solicitors before relaxing back into a position of facing the judge to respond – a stance known as the “pivot”. It is also important to speak slowly when given testimony as the judge will be making notes either on a laptop or in longhand. The judge is seeking the benefit of the expert’s opinion and, there are times when, through clever cross-examination, one of the legal representatives may prompt an expert to give a response that does not accurately or fully answer the question posed. In such circumstances, an expert may advise the judge of having produced an incomplete response to the question and politely ask if the judge would value a more thorough reply to this particular query. Further, where the same issue is addressed on multiple occasions within questioning, and the expert’s responses continue to highlight a perspective that is clearly not the one being promoted by the legal representative, it may be appropriate for the expert to advise the judge of a willingness to continue exploring the issue being pursued by the lawyer, but highlighting a seemingly irreconcilable difference of views that may prolong testimony but not particularly assist the court.
Owing to the necessity of the expert to provide independent testimony, it is advisable for the expert to refrain from much informal discussion with other professionals involved prior to entering the court to give evidence. Further, it will be important to confirm with the instructing or lead solicitor whether any further documents have been filed and to note, in some detail, further additional documentation that has been received in anticipation of giving evidence. Nevertheless, the expert may be requested to meet with legal representatives present prior to giving evidence (or instead of giving evidence) to discuss and perhaps resolve relevant issues before going into court. In some instances, matters are discussed amongst the different parties at this stage and an agreed plan can be put forward to the judge for a ruling. Upon being called to give evidence, the expert will be required to give their name, business address, relevant qualifications and experience.
PHOTO 16.3 Upon being called to give evidence, the expert will be required to give their name, business address, relevant qualifications and experience.
Source: © Corbis/SuperStock
Notably, it is the job of the lawyers present to prompt the expert to revise their opinion to more closely reflect the views and wishes of the individual that they represent. As such, they will look carefully for internal inconsistencies in the report produced, capitalising on factual inaccuracies and taking any opportunity to expose incompetence, equivocation or a lack of confidence in opinions expressed, where such observations are thought to be helpful in supporting their clie
nt’s case. The use of psychometric measures and psychological theory in attempting to explain an individual’s behaviour is often addressed in the course of cross-examination. Issues of psychometric principles such as reliability, test construction, sample validity and clinical interpretation are often points of contention and the expert witness is expected to be able to understand, explain and defend the measures used. In cross-examination, opposing counsel may seek to test the expert’s evidence and knowledge of these areas very thoroughly in support of their client. Counsel may employ aggressive questioning, with a view to unsettling the expert. They may also speak softly or engage with the expert in other ways that can affect concentration and reduce composure. Counsel may direct the expert to address their responses to the judge as a means of asserting authority over the expert. At times counsel will use leading questions, in an attempt to limit the expert’s testimony, discrediting their evidence and repeating the same questions hoping that the expert will change their answer. Counsel may demand that the expert “answer the question” or exert pressure to provide a yes or no answer and, in such circumstances, it is important for the expert, if appropriate, to advise the judge that a simple yes or no response would be insufficient to address the complicated nature of the question. As such, permission should be sought from the judge to provide him or her with a more thorough answer to the question. When questions are posed about matters that the expert has not been instructed to report upon, it is entirely appropriate to state this to the judge and if, with some further thought, the expert believes that they can provide a response that might assist, then additional time for reflection may be requested.
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