MENTAL HEALTH PROFESSIONALS AND THE COURTS:

THE ETHICS OF EXPERTISE

Stephen L. Golding, Ph.D.

Professor and Director of

Clinical Training

Department of Psychology

Adjunct Professor of Law

University of Utah

Salt Lake City, UT 84112

International Journal of Law and Psychiatry

1990 Vol. 13, 261-307

The interactions between mental health professionals and the civil and criminal justice systems has a long history, much of which is marked by strident debate and criticism as well as considerable accomplishment (American Psychological Association, 1978, 1980; Appelbaum, 1984b; Bazelon, 1982; Bersoff, 1986; Bonnie & Slobogin, 1980; Ciccone, 1986; Golding & Roesch, 1987; Monahan, 1980; Morse, 1978a, 1986; Resnick, 1986; Stone, 1984; Ziskin, 1981). As the forensic mental health professions become recognized increasingly as specialties, we need to analyze the nature of our role(s) as experts to the court. The central question addressed in this article concerns the nature of the ethical principles which should govern the offering of such expertise by forensic mental health professionals to the courts.

The diversity of forensic expertise

While the forensic mental health profession is a specialty, it is a mistake not to acknowledge the diversity of particular roles and to recognize that expertise within the specialty does not translate to expertise across the domain of roles. Figure 1 represents an initial attempt to characterize the domain of roles in terms of clients, primary roles, issues, and expertise.

----------------------------------------------------------------

Insert Figure 1 here

----------------------------------------------------------------

The listing is not meant to be exhaustive, but rather illustrative of the diversity. A full discussion of all ethical issues pertaining to this range of roles is the proper subject of a text, not an article. We therefore concentrate on a set of issues that are central within roles in the criminal justice system, but most generalize within the limits of similar rules of evidence. We begin our discussion of the ethics of expertise with a review of those rules of evidence surrounding mental health expertise because it provides an integrative structure.

FIGURE 1

Classification of prototype roles of mental health

professionals

I. Criminal justice system.

A. Pretrial evaluator on issues of competency, mental state at the time of offense, mental status of other parties (witnesses, alleged victims).

1. Pretrial therapist (including treatment following indictment, therapist for a defendant who was in treatment and/or evaluation prior to indictment, or therapist for other parties).

2. Presentence evaluator on issues of disposition, classification, and prediction of future status (dangerousness, treatment response, etc.).

3. Postconviction evaluator on issues of treatment needs, competency, current mental status, treatment response, etc.

4. Postconviction therapist.

II. Civil justice system.

A. Therapist or evaluator on issues of civil commitment (including contact as therapist or evaluator with person subject to commitment prior to the commitment proceeding).

B. Therapist or evaluator with respect to a party to a civil legal proceeding of any type (child custody, divorce, malpractice, negligence, contracts, wills, etc.).

III. Consultation (criminal and civil).

A. Expert to the court offering general evidence or testimony based upon one's research or scholarship.

B. Consultant to a party on issues of legal tactics, voir dire of jurors or other experts, change of venue, etc.

C. Consultant to a party acting as amicus.

An idealized view of mental health expertise

The sections of the Federal Rules of Evidence which pertain to expert testimony provide an idealized view of the role of the mental health expertise and a useful context for our analysis of the real world problems and ethical dilemmas of such expertise.

While qualified by many hearsay exceptions, ordinary witnesses may only testify about matters for which they have "personal knowledge." Experts, on the other hand, may testify as to inferences and opinions, and they may rely upon evidence which is not otherwise admissible. The justification for this exception is given in Rule 702 which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The nature of the data which the expert may use and testify to is described in Rule 703:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Rule 704, modified as part of an attempt to reform expert evidence in insanity cases, provides a limitation on the type of opinions which may be offered:

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. (704[b])

Rule 403 further limits expert testimony by allowing the judge to exclude such testimony, even if relevant when

...its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

Thus, in the ideal, mental health expertise enters the courtroom in the following steps:

a) An area of expertise, which is beyond the ordinary knowledge and understanding of the trier of fact, is accepted as one which will assist the trier of fact in understanding evidence or determining a fact at issue.

b) An expert in that area is qualified by the trial judge after hearing evidence that the individual is an expert, by virtue of "knowledge, skill, experience, training, or education."

c) The evidence upon which the expert will rely must be judged to be "trustworthy" or "reliable," i.e., of a type "reasonably relied upon" by experts in the area of expertise. Furthermore, the nature of the evidence must be judged to be more probative than it is prejudicial, confusing, misleading, or redundant with other evidence.

Summary critique of mental health expertise

It comes as no surprise, of course, that the ideal and the real are frequently at variance with one another. Controversy has surrounded the role of mental health expertise in the courtroom for several centuries (Bazelon, 1974; Blau, 1984; Clements & Ciccone, 1984; Diamond & Louisell, 1965; Ennis & Litwack, 1974; Golding & Roesch, 1987; Kaplan & Miller, 1986; Resnick, 1986; Smith, 1981; Walker, 1978). While an exhaustive catalogue of the controversial issues would be quite long, a set of central issues will first be outlined and then discussed under the major section headings which follow.

Moral advocacy versus expertise. While some nihilists argue that mental health expertise simply does not exist or should be banned completely from the courtroom, the more cogent argument has been that such expertise as does exist is quite limited, and that the real role of the forensic expert in the courtroom has been that of moral advocate (Morris, 1982; Morse, 1978b). That is, the problem with forensic expertise is identified with a hidden moral agenda in which the moral controversies underlying the ascription of responsibility and blameworthiness are played out through the roles of the experts.

The qualification of experts. In principle, a trial judge accepts an individual as a qualified expert only after a thorough hearing as to the person's training, knowledge, and experience with respect to a circumscribed area of expertise. In practice, judges rarely exercise this discretionary authority. The resulting problem is the level of expertise available to courts varies widely with many generically trained mental health professionals giving "expert opinions" on complex forensic mental health questions. The court is thereby misled into believing that it is hearing opinions based upon the most current scholarship, research, and experience in the area.

Prejudicial versus probative aspects of expertise. While judges have the discretionary authority to limit expert evidence, even when relevant, on the basis of the balance between its prejudicial versus probative effects, they are rarely asked to evaluate this issue. As a consequence, it has become common practice for both defense and prosecution to (mis)use their experts to lead evidence that would otherwise be inadmissible, obfuscatory, or prejudicial. A related claim is that "aura of science" which surrounds expert testimony leads to undue weight being given to the expert's opinions and inferences. Furthermore, since these opinions themselves are frequently seen as "invading the province of the trier of fact," experts are seen as inappropriately influencing the legal system.

Expertise is distorted in an adversarial system. The fundamental structure of evidence production in an adversarial system is seen as incompatible with the basic tenets of expert knowledge systems which are grounded in the scientific methods of evidence appraisal.

Expert evidence often implicates a number of constitutional issues. The fundamental critique is that the nature of the current legal structure allows the process of expert evidence production to touch sensitive constitutional issues. The most frequent critiques involve self-incrimination, confrontation and effective assistance of counsel (effective representation at critical stages, availability, effective cross-examination and the like).

Expertise is for hire. This claim is expressed most stridently as experts are "whores for hire." The more reasoned critiques question whether the combination of economic forces and a strongly structured adversarial system produces the most useful and probative expert testimony.

Moral advocacy versus expertise

By design, our criminal and civil justice systems are built upon fundamental "moral axioms" that derive from our Judeo-Christian heritage. To the extent that critical mental state claims inherently implicate these "moral axioms," forensic expertise may be drawn into a moral arena. For example, as a matter of fundamental "fairness," we assume that judgment of both criminal and civil responsibility for proscribed behaviors is based upon an ethical calculus that assigns individual moral and criminal responsibility as a function of intentionality and mental capacity. The classic legal maxim, Actus non facit reum, nisi mens sit rea, can be shown to be rooted in our Judeo-Christian conceptions of moral responsibility (Golding & Roesch, 1987). Constructively translated, this maxim holds that "An act is not legally cognizable as evil, and hence punishable, unless it is committed by a person who has the capacity to cognize the act as evil and then freely chooses to do it." Technically, forensic mental health professionals are called upon to offer expert testimony on the relationship between behavioral, situational, medical and psychological characteristics, on the one hand, and a defendant's capacities for intending, cognizing, reasoning, appreciating, and controlling, on the other. The assumption is that the expert's observations, data, inferences and opinions are grounded in dispassionate scientific method. While forensic professionals do have many scientifically justifiable skills in observation, assessment and inferential judgments to offer to the ascription process (Bonnie & Slobogin, 1980; Golding & Roesch, 1987; Morse, 1985, 1986), it seems inevitable that they will be drawn into the arena of moral judgment.

In the context of the prediction of dangerousness, Judge David Bazelon (Bazelon, 1974) characterized this as the "hot potato" problem: difficult social/moral judgment problems are "hot potatoes" that judges, juries, and society at large are willing to (covertly) relegate to forensic mental health professionals. On the surface, the trier of fact maintains judgmental authority, and the role of the forensic expert, to quote the United States Supreme Court in Ake v. Oklahoma (1985) is to:

... gather facts, both through professional examination, interviews and elsewhere ...; (to) analyze the information gathered and from it draw plausible conclusions about the defendant's mental condition, and about the effects of any disorder on behavior; and ... offer opinions about how the defendant's mental condition might have affected his behavior at the time in question. ... They know the probative questions to ask the opposing party's psychiatrists and how to interpret their answers. ... Furthermore, ... (they) translate a medical diagnosis into language that will assist the trier of fact, and therefore offer evidence in a form that has meaning for the task at hand. (p. 80)

Frequently, however, enormous pressure is placed upon the expert to take on the moral burden, and hence to go beyond their designated role.

The assertion that forensic experts are nothing more than `whores for hire,' is an historically recurring theme, often found in its most strident form in the public media after a highly visible public trial involving the insanity defense (Hans & Slater, 1983). This argument is frequently co-mingled with other assertions about the "softness" of psychological knowledge, lack of agreement between experts, and the extent to which judges and juries are "duped" by the outrageous and fictionally authoritative claims of experts (Faust & Ziskin, 1988). Empirically, most of these arguments can be shown to be wildly exaggerated (Fukunaga et al., 1981; Golding & Roesch, 1987; Melton et al., 1986; Petrila, 1982; Resnick, 1986; Rogers et al., 1984; Steadman et al., 1983) but the perceptions and beliefs continue. One needs to ask why they continue and what steps may be taken to bring public perceptions into line with empirical reality.

I believe that the key to understanding the level of emotionality surrounding this issue can be found in the deeply rooted moral and religious tension which surrounds the attribution of individual responsibility for "good" and "evil." At one end of the responsibility continuum are the "furiously insane," i.e., those severely and obviously disordered individuals who would be inappropriately and unjustly punished for losing control over impulses, cognitions and the distinction between reality and fantasy. By one mechanism or another, our tradition has always been to exempt such individuals from moral blame and criminal responsibility (for an extended discussion see Golding & Roesch, 1987). Indeed, the assumption, codified in the legal maxim, furiosus furore solum punitur, has been that the mental anguish and suffering of the insane is sufficient to account for any retributive feelings we might have towards them concerning their misdeeds.

However, one does not have to move far from this end of the continuum before there is a real moral and psychological tension about "irresistible impulses" versus "the impulse not resisted." We all struggle with the distinction between reality and fantasy, and seek to control various impulses, distorted perceptions and cognitions. Individuals who have the capacity to control their thoughts, perceptions and impulses and who fail to do so are not only criminally responsible, they are morally condemned as weak, or in the extreme, simply evil. Therefore, when the expert is asked covertly to relieve us of the moral burden of deciding who is on which side of a fuzzy boundary marked by considerable tension and conflict, we displace our anxiety, our punitiveness, and perhaps our resentment about being held to the moral standard and the psychological tension it causes. Poythress (1982) provides an important example, describing the heated reactions of the court and its officers when he declined to accept the implicit role and refused to offer a conclusory opinion. The scholarly treatises on this subject (e.g., Appelbaum, 1984a; Bazelon, 1978; Bonnie, 1984; Dahl, 1985; Golding & Roesch, 1987; Halleck, 1984, 1983; Melton et al., 1986; Morse, 1986) are in agreement that experts ought to confine themselves to presenting the trier of fact with knowledge, data, and perhaps reasoned inferences which inform and advise, and stay out of the ultimate arena of conclusory moral judgments. Thus, psychological knowledge, however limited, about a defendant plays a critical, but non-conclusory role in the moral judgments which distinguish points on this continuum. As forensic mental health professionals, it is proper to call upon us to offer scientifically acceptable observations, data, and expert testimony that draws out reasoned inferences and lends coherence to those data. The court seeks expert evidence on the relationship between psychological characteristics of a defendant, presented in proper scientific context with overt attention to factors which limit the reliability and validity of the evidence, and a defendant's legally relevant capacities for intending, cognizing, reasoning, appreciating, and controlling. The boundary between informing and advising the trier of fact about the nature and influence of persecutory delusions and conclusory opinions about a defendant's ability to "appreciate the wrongfulness" of their conduct is admittedly fuzzy, but it is also real. We do a disservice to our profession and to society when we accept the "hot potato" and allow ourselves to become either overt or covert moral agents.

In my view, it is not proper for us, as professionals, to await reform in the legal system with regard to this issue. We also need to reform ourselves by adopting explicit ethical and practice guidelines about the proper role of forensic expertise in the justice system. Existing standards do not adequately consider the issue. The parent professional organizations for psychologists and psychiatrists indirectly give ethical guidance to their members in this area by variously stating that mental health professionals limit their practice to areas of demonstrated competence (American Psychiatric Association, 1981; American Psychological Association, 1981). Forensic sub-specialty organizations are more specific. The American Academy of Psychiatry and Law (1987) addresses the issue by stating, "The forensic psychiatrist functions as an expert within the legal process. ... he adheres to the principles of impartiality and objectivity. (and) ... his opinion reflects this impartiality and objectivity" (p. 17). In commentary, it is further advised that " the ... forensic psychiatrist enhances the impartiality and objectivity of his work by basing his forensic opinions, ... reports, and ... testimony on all data available ... (and) ... by distinguishing, to the extent possible, between verified and unverified information as well as between clinical `facts,' `inferences' and `impressions' " (p.17). The draft standards of the American Academy of Forensic Psychology (1988) similarly stress the scientific bases of expert opinion, and cautions that the forensic psychologist "resists invitations and pressures to practice outside (of) ... areas of proficiency, or to answer questions which cannot be answered" (p. 3) and "should not render any opinions on legal issues" (p. 11).

These guidelines are an important starting place, but do not go far enough in providing guidance to forensic experts in avoiding either partiality or assuming ultimate "moral agent" roles. Division 41 (Psychology and Law) of the American Psychological Association is currently debating a set of draft guidelines (Golding & Grisso, 1988) which attempt more specific guidance. As part of the definition of professional competence, the draft asserts that forensic psychologists have an affirmative responsibility to

... recognize that their own personal values, moral beliefs, as well as their personal and professional relationships with parties to a legal proceeding may interfere with their ability to provide impartial forensic psychological services to parties in a legal proceeding. Under such circumstances, forensic psychologists are obligated to decline participation and to limit their assistance in a manner consistent with professional obligations (Section 3[f]).

Furthermore, with respect to the methods and procedures of forensic evaluations

Forensic psychologists have an obligation, flowing both from their competence and their special status as a person qualified as an expert to the court, to employ the highest clinical and scientific standards of their profession when selecting data collection methods and procedures for an evaluation, treatment, consultation or scholarly/empirical investigation (Section 6[a]).

Forensic psychologists fully inform prospective clients, relevant parties to a legal proceeding, and other consumers of their professional products and services of the known scientific bases and limitations of the methods and procedures which they employ (Section 6[b]).

In providing forensic psychological services, the forensic psychologist takes special care to avoid undue influence on the outcome of his/her methods, procedures, and conclusions emanating from the party to a legal proceeding by virtue of compensation or otherwise. As an expert conducting an evaluation, treatment, consultation or scholarly/empirical investigation, the forensic psychologist maintains his/her professional integrity by examining the issue at hand from all reasonable perspectives, and actively seeks information which will differentially test plausible rival hypotheses (Section 6[c]).

Finally, with respect to guidelines for communications to the court and the public, the suggested guidelines provide that

Forensic psychologists are sensitive to the public perceptions of their profession, and are aware that the adversarial nature of the legal system creates inevitable tensions, conflicts and controversies.

Forensic psychologists conduct their professional services and evaluations in the spirit of impartiality and strict adherence to principles of scientific investigation.

Forensic psychologists have an obligation to all parties to a legal proceeding to present their findings, conclusions, evidence or other professional products in a fair manner. The principle of impartiality with respect to evaluations, investigations or research does not preclude forceful representation of the data and reasoning upon which a conclusion or professional product is based. It does, however, preclude an attempt, whether active or passive, to engage in partisan advocacy. The forensic psychologist does not, by either commission or omission, allow the nature of their evidence to be misrepresented, nor does s/he participate in partisan advocacy or partisan attempts to avoid, deny or subvert the presentation of evidence contrary to their own position.

Forensic psychologists, by virtue of their competence and rules of discovery, actively disclose all sources of information obtained in the course of their professional services; they actively disclose which information from which source was used in formulating a particular written product or oral testimony.

Forensic psychologists are aware that their role as expert to the court, under Federal Rule of Evidence 702, is to "assist the trier of fact to understand the evidence or to determine a fact in issue." In offering expert evidence, they make clear the distinction between their own professional observations, inferences and conclusions and legal facts, opinions and conclusions, although they may explain the relationship between their expert testimony and the legal issues and facts of an instant case (Sections 7 [d-f]).

The essence of these ethical guidelines is that they place an affirmative responsibility on the expert to monitor his or her evidence and to remain, as clearly as possible on the "science" side of the boundary between moral judgment and expert evidence. Admittedly, as every student of the philosophy of science knows, subjectivity and moral judgments seem an inevitable component of even the most "objective" data, psychological or otherwise. Such limiting factors do not, however, preclude ethical standards which seek to either minimize such subjective influence or at least mandate alerting the consumer of the expertise to its probable nature and extent.

The voir dire of experts

Authority rests with the court to assure that expert evidence is relevant, properly obtained, likely to assist the trier of fact, and more probative than prejudicial. After determining that relevant expertise in a given circumscribed area exists and is likely to assist the court, it must determine which experts are qualified. The discretionary authority of the trial judge is quite broad, and examples of reversals based upon an abuse of discretion standard are extremely rare. Nevertheless, it is common knowledge that appropriate discretionary judgment is rarely applied and that many loosely qualified experts are permitted to testify. That is, trial judges rarely scrutinize the qualifications of a proposed expert, and defense and prosecution counsel rarely mount a rigorous examination of the expert during the voir dire. The assumption within the current system is that the rigors of the cross-examination process will be sufficient to discredit inadequate expertise, and that this properly goes to the weight and not the admissibility of the expert's evidence.

For example, at the penalty phase of the trial of Thomas Barefoot for the capital murder of a Texas police officer, Dr. James Grigson was qualified as an expert to testify as to the existence of aggravating factors, such as the "probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society" as specified in Texas law. Without having either examined Barefoot or having been denied the opportunity to do so, Grigson responded to the state's hypothetical questions and claimed that he could "predict future dangerousness of an individual within reasonable medical certainty," and Barefoot was within the "most severe category of sociopaths," such that Grigson was "one hundred percent and absolutely [certain that] Barefoot would commit future acts of violence that would constitute a continuing threat to society" (Barefoot v. Estelle, 1983, p. 919). My point here is not to enter into the argument about whether the data on prediction of future dangerousness is such that it ought to be barred as too unreliable to meet the threshold test for admissibility under Rule 702 (see, for example, Appelbaum, 1984a, 1983; Dix, 1983; Garrett, 1982). For the moment, let us accept the Supreme Court's view that

It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. ... What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. (Jurek v. Texas, 1976, 274-276)

It is patently clear that if such testimony is to be admitted on such a difficult issue, the court has the obligation to hear the best and most considered evidence, reflecting the highest levels of professional expertise. This is precisely what did not happen in the Barefoot case. Defense counsel did object to the form of Grigson's testimony, and was overruled in accordance with Jurek and other cases. The United States Supreme Court and the trial judge (like most judges) have consistenly ruled that any objections to Grigson-like testimony ought to be handled by cross-examination which would go to its weight. Thus, the facts that Grigson possessed an idiosyncratic and "rogue" understanding of the scientific literature on the predictability of dangerousness, that his assessment methods (none) were scientifically unjustifiable, and that his testimony, based as it was on neither an evaluation nor even an attempted evaluation of the defendant was in clear violation of both the general code of ethics for psychiatrists (American Psychiatric Association, 1981) and the specific code for forensic psychiatrists (American Academy of Psychiatry and Law, 1987), are elements that go to the weight of his evidence in the Supreme Court's view.

This is more than muddled-thinking. It is a dangerous misapplication of the fundamental rules of evidence which govern expert testimony. Having decided that a difficult, but relevant, area of expertise exists, the court must assert its authority to guarantee that the expertise offered is the best reasonably available, and the least likely to confuse, distort, prejudice or mislead. Doctor Grigson may have evaluated "between thirty and forty thousand individuals," but he clearly could and should have been disqualified on the basis of his lack of expertise (fundamental misunderstanding of the scientific bases of the problem) and his failure to base his testimony on evidence "of a type reasonably relied upon by the experts" (Rule 703).

A further example comes from the area of the insanity defense. While many might dispute the scientific bases upon which professionals could testify in this area, once the principle is admitted, then the court needs to seek out relevant expertise. In an unreported case in Champaign, Illinois (discussed in full by Golding & Roesch, 1987), Dr. Thomas Szasz was not qualified as an expert because the defense successfully argued that, whatever else his qualifications, he held a fixed and immutable belief, amounting to dogma not expertise, that mental illness is a myth. In this case, the trial court correctly reasoned that, having decided that the defendant's possible mental illness was a relevant legal issue (under Rule 702), it could not accept as "expert testimony" evidence that denied that core assumption. That is, reasoned and principled disagreement as to the defendant's mental state, based upon accepted methods of assessment and inquiry, would be admissible, and perhaps even desirable. On this issue, however, Szasz could not be qualified as an "expert" within the assumptions of the court.

As professionals we have an obligation to attempt to reform the process of expert qualification. All professional codes have statements which make it unethical to claim expertise outside of one's area of actual knowledge, training and so forth. One cannot argue with so reasonable a claim, except to observe that, as a guideline, it does not appear to have worked well. Many practicing mental health professionals and specialists believe that they are qualified to render inferences and opinions in areas where they have only generic training. Even more problematical is the tendency of some to claim expertise, and for the court to qualify them as such, when they are unwilling to acknowledge or are unaware of the scientific limits of their data and opinions. The result is a cumbersome system that depends too heavily upon the rigors of cross-examination. Additionally, the court is subjected to unnecessary "battles of the experts" which consumes time, limited financial and judicial resources, and demeans the public image of justice and of the professions. A partial solution is to place an affirmative duty on the potential expert to clarify the bases and limits of their expert during their voir dire. Instead of passively answering only those questions asked by counsel or the court, the expert should be required to actively produce the bases of their specific expertise in the delimited area defined by the court as relevant. It is also incumbent upon the profession to clarify the limits of expertise, per se, in a particular domain through both scholarly outlets and as part of an ethically grounded voir dire.

A prime advantage of this approach is that it does not require the professions to solve or agree upon what constitutes a "sub-specialty" or what training and so forth is required to be a "specialist." Rather, the court retains its legitimate role as authority in this matter. However, such activism on the part of the professions forces the court to become more informed, to make its decision upon more uniform and extensive data. The system is thereby encouraged to engage in more issue specific scrutiny. Judge David Bazelon has argued for many years that courts need to assert more authority in this area. With due respect, we cannot wait for such reform. The courts continue to be too liberal in their judgments of the limits of expertise, and have been to willing to accept generic board certification or training as qualifying experts across a variety of issues. By placing an affirmative duty on the potential expert to offer evidence on these issues, we help to ensure that this critical issue will receive the attention it deserves.

Prejudicial and constitutional aspects of expertise

These are interrelated problems, and the source of much controversy, in part because the evidentiary and constitutional issues themselves are complex, and the guidance provided by existing guidelines is vague. Attention will be paid to a limited set of issues, but the underlying logic can be applied to other areas without loss of generality. We will concentrate on three central issues:

a) the misuse of experts to lead evidence that would otherwise be inadmissible, obfuscatory, or prejudicial;

b) undue weight being given to the expert's opinions and inferences (the "aura of science" problem) and "invading the province of the trier of fact;" and

c) aspects of expert evidence which undermine rights to confrontation and effective assistance of counsel.

As experienced attorneys and forensic clinicians know all too well, an expert in court can be either a dangerous foe or a valued ally. One prime reason for this is that experts are permitted in our system to rely upon evidence that is "otherwise inadmissible." Technically, an expert may be called upon to testify as to that evidence as the basis upon which he or she has reached their professional opinion. The trier of fact, under various rules, may not rely upon that "otherwise inadmissible" evidence as facts, but rather as information which goes to the weight of the expert's opinion. Several kinds of evidence are the source of the problem. Hearsay evidence includes information supplied to the expert by other professionals (directly and through reports), hospital records, and information supplied by other third parties including lay persons, relatives, and various agencies with which the examinee may have had contact. While a "careful" trial might involve the direct testimony of the individual's providing this information and their cross-examination (hence converting this information from hearsay to admissible evidence), this usually does not occur. In general, the courts have permitted experts to rely upon this sort of data because it is customary within the profession, and because it has been assumed that the expert is in a position to "screen out" unreliable information, and may be cross-examined on the issues. As O'Toole (1977) and others have pointed out, this is a weak assurance to the court of the reliability and trustworthiness of the data. One solution proposed by O'Toole is for the courts to carefully scrutinize the extent to which it is customary to rely upon such data and further to inquire as to the reliability of the hearsay evidence. We can assist the trier of fact in this regard by making our own standards more rigorous. For example, the guidelines proposed by Golding and Grisso (1988) provide that:

When forensic psychologist's seek data from third parties, prior records or other sources, they do so only with the prior approval of their client, the court, or other relevant legal parties. (Section 6[e]).

Forensic psychologists are aware that the hearsay exceptions embodied in Federal Rule of Evidence 703 places a special burden upon them. While hearsay or otherwise inadmissable evidence may form the partial basis of their opinion, evidence or professional product, they actively seek to minimize their reliance upon such evidence.

(i). With respect to evidence of any type, whether hearsay or otherwise admissable under the rules of evidence, a forensic psychologist avoids offering information from their investigations or evaluations that does not bear directly upon the legal purpose of their professional services and which is not critical as support for their product, evidence or testimony, except where such disclosure is required by law.

(ii). Where circumstances reasonably permit, a forensic psychologist seeks to obtain independent and personal verification of data upon which s/he relies as part of their professional services to the court or to a party to a legal proceeding. (Section 6[f]).

These guidelines, if adopted by the profession, would increase greatly the reliability of such hearsay bases, and would also provide the opposing counsel with adequate information upon which to base realistic cross-examination. It is not unreasonable to ask the forensic clinician to be sensitive to hearsay information which may be prejudicial, and to seek to limit information contained in a report or in court testimony by asking whether the information is necessary to support their professional opinion. If the information is necessary, then reasonable steps should be taken to ensure its reliability.

The problems associated with the weight of expert evidence are even more complex. With some exceptions, the courts have generally adopted an approach which allows wide limits to the admissibility of clinical forensic expertise, allowing the "rigors" of cross-examination to reveal the appropriate weight to be placed upon such evidence. The practicality of this position depends upon the extent to which data which pertains to the reliability of the expert evidence is fully available to the trier of fact. Regrettably, ordinary trial practice falls far short of this standard. Most attorneys are not prepared to mount an effective and thorough examination of the expert, many individuals qualified as experts lack sufficient expertise as to the scientific limits of their methods, procedures, and opinions, and the adversarial system of evidence production may not be the most effective method when scientific matters are the subject of controversy (Anderten, Staulcup & Grisso, 1980; Appelbaum, 1987; Bersoff, 1986; Loftus & Monahan, 1980; Monahan & Walker, 1986).

In order to assist triers of fact under the current conditions, and not to allow our expertise to be misrepresented by either over- or under-valuing its scientific bases, we need to adopt stronger ethical standards with regard to evidence production. A large portion of the guidelines proposed by Golding and Grisso (1988) addresses these problems. Some of these have been previously referred to and others are detailed here. The proposed guidelines are based upon the assumption that a qualified expert accepts that his or her special status in the legal system confers upon them a special responsibility to preserve the best evidence of the bases of their testimony and to forthrightly present that evidence contextualized by an accurate statement of its known limitations and qualifications.

Section 3(c)(i)-(iv) addresses the issue of collecting and preserving the "best evidence" as follows:

Forensic psychologists have an obligation, flowing both from their competence and their special status as a person qualified as an expert to the court, to document and to make available to all parties to a legal proceeding, all data which forms the basis for their evidence or services. The standard to be applied to such documentation or recording anticipates that the detail and quality of such documentation will be subject to reasonable judicial scrutiny, and so is higher than the normative standard for general clinical and research practice. (Section 3[c]).

All evaluation and treatment procedures, research, and other forms of data which form the basis for the expert's evidence must be available, in reasonable form, for discovery and direct or cross-examination. (Section 3[c][i]).

All data and evidence collected as a consequence of a contractual relationship with an attorney representing a party to a legal proceeding is subject to attorney-client privilege as a "work-product." They may not be released without either the waiver of the party holding the privilege or a lawful order from the court to release or produce the data or evidence. (Section 3[c][ii]).

A special problem exists with respect to "personal notes." Notes taken during the course of an examination or interview for the purpose of recording relevant aspects of the individual's demeanor, verbal behavior and so forth are not considered personal notes, since they are a substitute or augment recordings [see iv(1)]. Personal notes include only notations made for the personal use of the evaluator (e.g. hunches, speculations, areas to pursue) and which do not function as a basis, whether partial or otherwise, for the evaluator's professional product, testimony or other evidence. (Section 3[c][iii]).

When a forensic psychologist conducts an examination or engages in the treatment of a party to a legal proceeding prior to, or as a consequence of a legal proceeding, s/he incurs a special responsibility to provide the "best documentation" possible under the circumstances.

Usually, video- or audio-tapes will provide the best documentation of interviews. Because the forensic psychologist has advance knowledge in these circumstances that the evidentiary basis of their opinions, testimony or other evidence will be subject to adversarial examination, they may not intentionally fail to collect and document the "best evidence." Under circumstances where the interviewee refuses consent or where situations, beyond the reasonable control of the examiner, preclude such recordings, the examiner bears a special responsibility to preserve the best record possible, in the form of detailed notes prepared within a reasonable period of time following the interview.

Documentation of the data upon which one's evidence is based is subject to the normal rules of discovery, disclosure, confidentiality and privilege which operate in the jurisdiction in which the data was obtained. The forensic psychologist has an affirmative duty to be aware of those rules and to regulate his/her conduct in accordance with them.

The duties and obligations of forensic psychologists with respect to documentation of data which form the basis for their evidence obtain from the moment they know or have a reasonable basis for knowing that their data and evidence derived from it is likely to enter into legally-relevant decisions. (Section 3[c][iv][1-3]).

Our concern here is with assuring that the evidentiary bases of expert testimony are sufficient preserved so as to not undermine the opposing party's constitutional right to effective counsel and confrontation. Recording interviews or otherwise preserving the best evidence available removes the disadvantage of cross-examining an expert who is not only "in control" of the expertise but also of the data to which that expertise is applied. While a medical pathologist would testify ordinarily as to the meaning of a certain pattern of blood stains, the courts would not ordinarily allow such testimony if he were the only one who saw them! Why should not we be held to an appropriately equivalent standard?

This problem is illustrated forcefully in United States v. Byers (1984). At Byers' trial for murder, an examining psychiatrist testified that during an interview Byers had told him that his wife had suggested to him that his mental state might have been under the influence of "roots." This statement, if true and not distorted out of context, implied that Byers' "delusions" were suggested to him by his wife. The trial court characterized the testimony as "devastating" and such that it "perhaps will torpedo the (defendant) out of the water" (p. 1144). Unfortunately, the psychiatrist had a) destroyed his notes of the interview; b) admitted that he did not record the statement in the destroyed notes because he considered it insignificant; c) did not tell any of his colleagues of the alleged statement, and d) did not allude to it or any aspect of malingering in his report to the court.

Byers was unsuccessful in his attempt, on appeal, to have his conviction set aside on the grounds that the testimony violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to effective assistance of counsel. A strongly divided court ruled that Byers statements to the expert were admissible and did not violate his right to avoid self-incrimination. The court distinguished Estelle v. Smith (1981) by arguing that, whereas Smith had not raised either competency or sanity, Byers had himself interposed the insanity defense, thus waiving certain aspects of the right against self-incrimination.

When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case. Accordingly, several Courts of Appeal have held that, under such circumstances, a defendant can be required to submit to a sanity evaluation conducted by a prosecution's psychiatrist (p. 465).

Similarly, the Court rejected Byers claim that he had been deprived of effective assistance of counsel -- "it is enough that Byers had the opportunity to contest the accuracy of both the details and the conclusion of Dr. Kunev's analysis by cross-examining him (pointing out, as he did, that the crucial statement on which Kunev based his conclusion was not reflected in the psychiatrist's summary of the interview)" (Byers, p. 1121). Interestingly, the Court concluded, "Recording psychiatric interviews may be a good idea, but not all good ideas have been embodied in the Constitution in general or in the Sixth Amendment in particular" (Byers, p. 1121).

Judge Bazelon, in his strongly worded dissent, expressed the underlying logic of our proposed guideline clearly when he concluded that

If defense counsel had an accurate, complete record of the clinical interview he could, with the aid of his own experts, attempt to identify the distortions and interactions that may have affected the substance of the interviewer's reports and testimony. But such a complete, accurate record cannot, by virtue of the very effects I have described, be expected to be forthcoming from the interviewer. The accused, moreover, whatever his mental state, cannot be relied upon to fill in the gaps necessary for a complete and accurate assessment. It is therefore clear that ... counsel may be unable to detect distortions or to cross-examine meaningfully the government's expert and rebut his conclusions ... A complete tape recording or videotape of the interview would provide counsel with exactly the sort of objective and precise record that, as I have previously discussed, is often a prerequisite to detection of distortions and to effective cross-examination or rebuttal at trial. As discussed above, such a taped record would facilitate constitutional aims without impairing the interview process itself. (Byers, Pp. 1171-1172).

Full access to the evidentiary bases of forensic testimony is becoming an increasing problem as jurisdictions seek to reform the procedures involved in the prosecution of child sexual abuse cases. While a full discussion is beyond the scope of this article (but see Cohen [1985]; Kelly [1985]; MacFarlane [1985]; Miller & Weinstock [1987]; Roe [1985]; Spencer [1987]), many jurisdictions now permit a child's statements to an examiner to be entered into testimony through the expert and without the child being required to testify under increasingly wider circumstances. To compound the problem, other jurisdictions allow testimony as to the conclusion that the child has been the victim of sexual abuse (see prior references). Whether or not such evidentiary rules are "wise," it is clear that in such jurisdictions, the forensic examiner must be required to produce carefully documented data upon which such testimony is based. Otherwise, the role of the forensic professional is seriously compromised.

Obviously, the data upon which forensic testimony is based, no matter how carefully documented, is no better than the reliability and validity of the methods and procedures used to collect such data. Therefore, explicit guidelines are needed by the profession so that the ground is laid to challenge an expert with respect to whether the data, methods, and procedures are "of a type reasonably relied upon by experts." The guidelines proposed by Golding and Grisso (1988) introduce this concept as follows:

Thus, the forensic expert incurs the affirmative responsibility to justify why their methods or procedures in a particular context might deviate from the "highest clinical and scientific standards." If one is offering diagnostic testimony, it will no longer do to conduct a "seat of the pants" mental status interview and offer testimony about the increased reliability of DSM-IIIR. If the expert is to rely upon DSM-IIIR, then he or she would bear the responsibility of demonstrating why the associated semi-structured elicitation interviews were not used, and how this limited the reliability and validity of their testimony.

It is not assumed, naively, that no controversy exists as to the "highest standards" or the "scientific bases" of various procedures. Considerable dispute exists about most of the methods and procedures we employ. However, guidelines of this type put the responsibility for justification where it belongs and it further legitimates putting the expert to the test of expertise. As we have seen in other contexts examined in this chapter, our legal system invites expert testimony based upon critical assumptions, and we need to assume more responsibility in assuring that the assumptions are met.

While all of the existing ethical codes address the legal and ethical necessity of obtaining informed or substitute consent for the pretrial evaluation of defendants, there remain serious problems because of the rules that concern disclosure of such information. As several authors have observed (Golding and Roesch, 1987; Melton et al., 1986; Showalter, 1988), forensic professionals often include in their reports information which can produce adverse "fruits." Until most jurisdictions adopt rules of evidence similar to the procedure in Virginia (reviewed by Melton et al., 1986) which provides for elaborate protection, some set of guidelines is needed. Golding and Grisso (1988) have proposed the following:

Forensic psychologists are aware that "no statement made by the defendant in the course of any (forensic) examination ... with or without the consent of the defendant, no testimony by the expert based upon such statement, and no other fruits of the statement shall be admitted in evidence against the defendant ... in any criminal proceeding except on an issue respecting mental condition on which the defendant has introduced testimony" (Federal Rules of Criminal Procedure, 12.2(c), 1985). Forensic psychologists have an affirmative duty to ensure that their written products and oral testimony conform to this rule of procedure.

Because forensic psychologists are often not in a position to know what evidence, documentation or element of a written product may be or may lead to a "fruit of the statement," they exercise extreme caution in preparing reports or offering testimony prior to the defendant's assertion of a mental state claim or the defendant's introduction of testimony regarding a mental condition. Consistent with the reporting requirements of state or federal law, forensic psychologists avoid including statements from the defendant relating to the time period of the alleged offense.

Once a defendant has proceeded to the trial stage, and all pretrial mental health issues such as competency have been resolved, the forensic psychologist may include in their reports or testimony any statements made by the defendant that are directly relevant to supporting their expert evidence, providing that the defendant has "introduced" mental state evidence or testimony within the meaning of Federal Rule of Procedure 12.2(c). (Section 6[g]; see also Section 6[f] discussed previously).

Expertise for hire? -- A brief proposal for reform

No problem with forensic expertise produces as much emotionality as the challenge that forensic mental health professionals are "whores for hire." Those of us who take pride in our profession and who are associated with internal reforms having to do with training (Blau, 1984; Brodsky & Robey, 1972; Ciccone & Clements, 1984a, 1984b; Fitch, Petrella & Wallace, 1987; Gutheil & Appelbaum, 1982; Melton et al., 1986; Pollack, Gross & Weinberger, 1982a, 1982b; Poythress, 1978, 1979) and revision of ethical standards (Golding & Grisso, 1988; Rappeport, 1981; Rogers, 1987; Sadoff, 1984; Slovenko, 1987; Weiner, 1984; Weinstein, 1984; and many of the codes previously cited) are particularly stung by such continuing accusations. Leaving aside the emotionality, we need to take the challenge seriously and ask what reforms might be needed and whether or not they will be effective.

This article has suggested a number of steps to improve the internal self-regulation of the profession with regard to ethical standards and guidelines. Reforms of this type are preferable in comparison to the "blunt axe" of legislative reform. One may legitimately ask, however, why such internal self-regulation is likely to succeed. As an educator and trainer, my biases lead me to put most faith in educationally based reform that strongly emphasizes the sort of ethical and professional standards emphasized here. Why or how can this sort of reform overcome the inertia or the financial motives which seem to inhibit reform?

It is clear that the fundamental rules of evidence, discussed in detail in this article, provide the basis for the trier of fact to exercise considerable control and discretion over the process of expert evidence production. It is equally clear that our colleagues in the legal system need to exercise the authority that they already have more consistently and forcefully. Several reasons account for their failure to do so. First, the typical law school curriculum places little or no emphasis on learning the relevant aspects of the behavioral and psychological sciences that would equip trial attorneys and future judges with a firmer basis to pursue their own rules of evidence, better cross-examination, and the like. Secondly, the mental health professions have acted more like guilds than scientific professions, and have been reluctant to promulgate and enforce detailed standards. Thus, when the legal system looks for help in interpretation of customary procedure, or the range of acceptable interpretation or training, they find little to guide them. Third, the American legal system, notwithstanding its adversarial reputation, is remarkably passive in its attitudes toward expertise. For example, Rule 706 of the Federal Rules of Evidence was designed to give a trial judge discretionary authority to appoint experts to the court. This rule was adopted after considerable study and was strongly supported by the American Bar Association (1971). Nevertheless, for unclear reasons, judges rarely seem to excercise this authority in cases involving mental health issues. In part this may be attributable to their belief that "impartiality" is a fallacy (Diamond, 1959), to a judicial reluctance to "interfere," or to lack of training as to what can or should be expected of a well-trained mental health expert. On all grounds, an articulated interdisciplinary educational system in both law schools and mental health training programs can overcome these problems. The "impartiality as fallacy" argument wasn't very accurate 30 years ago and as the forensic training programs now available come into their maturity and promulgate the standards described here, the ideal goals set forth in tough standards will increasingly become the norm. Moreover, the judiciary can be "nudged" in this direction if trial attorneys, based upon interdisciplinary training in law school, push the issue by raising the various evidentiary objections at trial in a vigorous and well-informed manner. Thus, while the motion to bar Dr. Grigson's testimony may have failed, most trial judges, seeking to avoid reversible error, could be persuaded that the scientific basis of prediction of future dangerousness was sufficiently "dicey" that prudence, if not constitutionally mandated reliability considerations, in a death penalty case would call for appointing neutral experts under Rule 706.

Proposals to reform the financial basis of the expert system are inherently difficult. For decades numerous proposals to establish neutral panels or lists of "unbiased" experts have emerged. As those of us who work in the system know all too well, enormous financial pressures exist, especially if one is in full-time private practice (Modlin, 1984). Given the current economic structure of our society and the widely based need for forensic evaluations in our criminal and civil justice systems, this is unlikely to change. Creating panels of relatively more impartial experts will help break the link between source of funding and the nature of opinions, but it will not directly eliminate economic competition and financial incentives. In my view, while various procedural reforms can have some impact, the only long-term solution to the problem lies in strengthening the internal reform, the ethical standards, and the quality of training within our profession and in the legal profession. By vocally and strenuously pursuing such options and actively presenting the justice system with an articulated basis for forensic expertise, we place our bets on the reverse of Gresham's law -- good, well founded expertise will drive out inadequate (bad) expertise.

REFERENCES

Ake v. Oklahoma, 470 U.S. 68 (1985).

American Academy of Forensic Psychology (1988). Draft Standards for providers of forensic psychological services. Unpublished draft.

American Academy of Psychiatry and the Law (1987). Ethical guidelines for the practice of forensic psychiatry. AAPL Newsletter, 12, 16-17.

American Bar Association (1984). Criminal Justice Mental Health Standards. Chicago, Ill. : Author.

American Bar Association (1971). Handbook on the improvement of the administration of justice. Chicago, Ill. : Author.

American Psychiatric Association (1981). The principles of medical ethics with annotation especially applicable to psychiatry. Washington, D. C. : Author.

American Psychological Association (1981). Ethical principles of psychologists. American Psychologist, 36, 633-638.

American Psychological Association (1980). Bibliography on ethics in criminal justice. Who is the client? The ethics of psychological intervention in the criminal justice system. Washington, D. C.: Author 154-168.

American Psychological Association (1978). Report of the task force on the role of psychology in the criminal justice system. American Psychologist, 33, 1099-1113.

Anderten, P., Staulcup, V., & Grisso, T. (1980). On being ethical in legal places. Professional Psychology, 11, 764-773.

Anonymous. (1988). Admissibility of expert testimony under Federal Rule of Evidence 403. 76 ALR Fed 700.

Appelbaum, P. S. (1987). In the wake of Ake: The ethics of expert testimony in an advocate's world. Bulletin of the American Academy of Psychiatry and Law, 15, 15-25.

Appelbaum, P. S. (1984a). Hypotheticals, psychiatric testimony, and the death sentence. Bulletin of the American Academy of Psychiatry and the Law, 12, 169-177.

Appelbaum, P. S. (1984b). Psychiatric ethics in the courtroom. Bulletin of the American Academy of Psychiatry and Law, 12, 225-231.

Appelbaum, P. S. (1983). Death, the expert witness, and the dangers of going Barefoot. Hospital and Community Psychiatry, 34, 1003-1004.

Barefoot v. Estelle, 460 U.S. 880 (1983).

Bazelon, D. (1982). Veils, values, and social responsibility. American Psychologist, 37, 115-121.

Bazelon, D. L. (1978). The role of the psychiatrist in the criminal justice system. Bulletin of the American Academy of Psychiatry and Law, 6, 139-146.

Bazelon, D. L. (1974). The perils of wizardry. American Journal of Psychiatry, 131, 1317-1322.

Bersoff, D. N. (1986). Psychologists and the judicial systems: Broader perspectives. Law and Human Behavior, 10, 151-166.

Blau, T. H. (1984). The psychologist as expert witness. New York : John Wiley.

Bonnie, R. J. (1984). Morality, equality, and expertise: Renegotiating the relationship between psychiatry and the criminal law. Bulletin of the American Academy of Psychiatry and the Law, 12, 5-20.

Bonnie, R. J., & Slobogin, C. (1980). The role of mental health professionals in the criminal process: The case for informed speculation. Virginia Law Review, 66, 427-522.

Brodsky, S. L., & Robey, A. (1972). On becoming an expert witness: Issues of orientation and effectiveness. Professional Psychology, 3, 173-176.

Carlson, R. L. (1987). Policing the bases of modern expert testimony. Vanderbilt Law Review, 39, 577-593.

Ciccone, J. R. (1986). A new look at an old problem: Expert witnesses and criminal responsibility. Psychiatric Annals, 16, 408-410.

Ciccone, J. R., & Clements, C. D. (1984a). The ethical practice of forensic psychiatry: A view from the trenches. Bulletin of the American Academy of Psychiatry and Law, 12, 263-277.

Ciccone, J. R., & Clements, C. D. (1984b). Forensic psychiatry and applied clinical ethics: theory and practice. American Journal of Psychiatry, 141, 395-399.

Clements, C. D., & Ciccone, R. (1984). Ethics and expert witnesses: The troubled role of psychiatrists in court. Bulletin of the American Academy of Psychiatry and Law, 12, 127-136.

Cohen, A. (1985). The unreliability of expert testimony on the typical characteristics of sexual abuse victims. Georgetown Law Journal, 74, 429-456.

Criss, M. L., & Racine, D. R. (1980). Impact and change in legal standard for those adjudicated not guilty by reason of insanity 1975-1979. Bulletin of the American Academy of Psychiatry and Law, 8, 261-271.

Dahl, P. R. (1985). Legal and psychiatric concepts and the use of psychiatric evidence in criminal trials. California Law Review, 73, 411-442.

Diamond, B. L. (1959). The fallacy of the impartial expert. Archives of Criminal Psychodynamics, 3, 221-***.

Diamond, B. L., & Louisell, D. W. (1965). The psychiatrist as an expert witness: Some ruminations and speculations. Michigan Law Review, 63, 1335-1354.

Dix, G. E. (1983). A legal perspective on dangerousness: Current status. Psychiatric Annals, 13, 243-256.

Eigen, J. P. (1983). Historical developments in psychiatric forensic practice: The British experience. International Journal of Law and Psychiatry, 6, 423-429.

Ennis, B. J., & Litwack, T. R. (1974). Psychiatry and the presumption of expertise: Flipping coins in the courtroom. California Law Review, 62, 693-752.

Estelle v. Smith, 451 U.S. 454 (1981).

Faust, D., & Ziskin, J. (1988). The expert witness in psychology and psychiatry. Science, 241, 31-35.

Fitch, W. L., Petrella, R. C., & Wallace, J. (1987). Legal ethics and the use of mental health experts in criminal cases. Behavioral Sciences and the Law, 5, 105-119.

Fukunaga, K., Pasewark, R., Hawkins, M., & Gudeman, H. (1981). Insanity plea: Interexaminer agreement and concordance of psychiatric opinion and court verdict. Law and Human Behavior,

5, 325-328.

Garrett, S. M. (1982). People v. Murtishaw: Applying the Frye test to psychiatric predictions of dangerousness in capital cases. California Law Review, 70, 1069-1090.

Giannelli, P. C. (1980). The admissibility of novel scientific evidence: Frye v. United States, a half-century later. Columbia Law Review, 80, 1197-1250.

Giannelli, P. C., & Imwinkelried, E. J. (1988). Scientific evidence. Charlottesville, VA. : Michie.

Golding, S. L. (1983, October). The assessment, treatment, and community outcome of defendants found not guilty by reason of insanity. Paper presented at the meeting of the American Psychology-Law Society, Chicago, IL.

Golding, S. L., & Roesch, R. (1987). The assessment of criminal responsibility: A historical perspective. In I. B. Weiner & A. K. Hess (Eds.), Handbook of forensic psychology. New York : Wiley, 1987, Pp. 395-436.

Golding, S. L., & Grisso, T. (1988). Guidelines for forensic psychologists. Unpublished discussion draft.

Gutheil, T. G., & Appelbaum, P. S. (1982). Clinical handbook of psychiatry and the law. New York: McGraw-Hill.

Halleck, S. L. (1984). The ethical dilemmas of forensic psychiatry: A utilitarian approach. Bulletin of the American Academy of Psychiatry and Law, 12, 279-288.

Halleck, S. L. (1980). Law in the practice of psychiatry: A handbook for clinicians. New York: Plenum Medical Books.

Hans, V. P., & Slater, D. (1983). John Hinckley, Jr. and the insanity defense: The public's verdict. Public Opinion Quarterly, 47, 202-212.

Jenkins v. United States, 307 F. 2d 637 (D.C. Court of Appeals, 1962).

Jurek v. Texas, 428 U.S. 262 (1976).

Kaplan, L. V., Miller, R. D. (1986). Courtroom psychiatrists: Expertise at the cost of wisdom?. International Journal of Law and Psychiatry, 9, 451-468.

Kelly, J. (1985). Legislative responses to child sexual abuse cases:The hearsay exception and the videotape deposition. Catholic University Law Review, 34, 1021-1054.

Landis, D. T. (1988). When will expert testimony "assist trier of fact" as to be admissible at federal trial under Rule 702 of Federal Rules of Evidence. 75 ALR Fed 461.

Loftus, E., & Monahan, J. (1980). Trial by data: Psychological research as legal evidence. American Psychologist, 35, 270-283.

MacFarlane, K. (1985). Diagnostic evaluations and the use of videotapes in child sexual abuse cases. University of Miami Law Review, 40, 135-165.

Melton, G. B., Petrila, J., Poythress, N. G. & Slobogin, C. (1986). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers. New York : Guilford Press.

Miller, R. D., & Weinstock, R. (1987). Conflict of interest between therapist-patient confidentiality and the duty to report sexual abuse of children. Behavioral Sciences and the Law, 5, 161-174.

Modlin, H. C. (1984). The ivory tower v. the marketplace. Bulletin of the American Academy of Psychiatry and Law, 12, 233-236.

Moenssens, A. A., Inbau, F. E., & Starrs, J. E. (1986). Scientific evidence in criminal cases (Third Ed.). Mineola, N. Y. : Foundation Press.

Monahan, J. (1980). Who is the client? The ethics of psychological intervention in the criminal justice system. Washington, D. C.: American Psychological Association.

Monahan, J., & Walker, L. (1986). Social authority: Obtaining, evaluating, and establishing social science in law. University of Pennsylvania Law Review, 134, 477-517.

Morris, N. (1982). Madness and the criminal law. Chicago: University of Chicago Press.

Morse, S. J. (1986). Psychology, determinism and legal responsibility. In G. B. Melton (Ed.), Nebraska symposium on motivation: Vol. 33. The law as a behavioral instrument. Lincoln, NE : University of Nebraska Press, Pp. 35-85.

Morse, S. J. (1985). Excusing the crazy: The insanity defense reconsidered. Southern California Law Review, 58, 777-836.

Morse, S. J. (1978a). Crazy behavior, morals, and science: An analysis of Mental Health Law. Southern California Law Review, 51, 527-654.

Morse, S. J. (1978b). Law and mental health professionals: The limits of expertise. Professional Psychology, 9, 389-399.

Neumeg, R. (1988). What information is of a type "reasonably relied upon by experts" with Rule 703, Federal Rules of Evidence, permitting expert opinion based on information not admissible in evidence. 49 ALR Fed 363.

O'Toole, M. B. (1977). Hearsay bases of psychiatric opinion testimony: A critique of Federal rule of evidence 703. Southern California Law Review, 51, 129-162.

Petrila, J. (1982). The insanity defense and other mental health dispositions in Missouri. International Journal of Law and Psychiatry, 5, 81-101.

Pollack, S., Gross, B. H., & Weinberger, L. E. (1982a). Principles of forensic psychiatry for reaching psychiatric-legal opinions: Introduction. New Directions for Mental Health Services, 16, 15-23.

Pollack, S., Gross, B. H., & Weinberger, L. E. (1982b). Principles of forensic psychiatry for reaching psychiatric-legal opinions: Application. New Directions for Mental Health Services, 16, 25-44.

Poythress, N. G. (1982). Concerning reform in expert testimony. An open letter from a practicing psychologist. Law and Human Behavior, 6, 39-43.

Poythress, N. G. (1979). A proposal for training in forensic psychology. American Psychologist, 34, 612-621.

Poythress, N. G. (1978). Psychiatric expertise in civil commitment: Training attorneys to cope with expert testimony. Law and Human Behavior, 2, 1-23.

Rappeport, J. (1981). Ethics and forensic psychiatry. In S. Bloch & P. Chodoff (Eds.), Psychiatric ethics. Oxford : Oxford University Press, Pp. 255-276.

Resnick, P. J. (1986). Perceptions of psychiatric testimony: A historical perspective on the hysterical invective. Bulletin of the American Academy of Psychiatry and Law, 14, 203-219.

Rice, P. R. (1987). Inadmissible evidence as a basis for expert opinion testimony: A response to Professor Carlson. Vanderbilt Law Review, 40, 583-596.

Roe, R. J. (1985). Expert testimony in child sexual abuse cases. University of Miami Law Review, 40, 97-113.

Rogers, R. (1987). Ethical dilemmas in forensic evaluations Behavioral Sciences and the Law, 5, 149-160.

Rogers, R., Wasyliw, O. E., & Cavanaugh, J. L. (1984). Evaluating insanity: A study of construct validity. Law and Human Behavior, 8, 293-304.

Sadoff, R. L. (1984). Practical ethical problems of the forensic psychiatrist in dealing with attorneys. Bulletin of the American Academy of Psychiatry and Law, 12, 243-252.

Showalter, C. R. (1988, in press). The participation of psychiatrists in capital sentencing proceedings: Ethical considerations. International Journal of Law and Psychiatry.

Shuman, D. W. (1986). Psychiatric and psychological evidence. Colorado Springs, Colorado : Shepard's/McGraw-Hill.

Slovenko, R. (1987). The lawyer and the forensic expert: Boundaries of ethical practice. Behavioral Sciences and the Law, 5, 119-148.

Smith, R. (1981). Trial by medicine: Insanity and responsibility in Victorian trials. Edinburgh: Edinburgh University Press.

Special Committee of the Association of the Bar of the City of New York (1956). Impartial medical testimony. New York : Macmillan.

Spencer, J. R. (1987). Child witnesses, corroboration and expert evidence. Criminal Law Review, 1987, 239-251.

Steadman, H. J., Keitner, L., Braff, J., & Arvanites, M. A. (1983). Factors associated with a successful insanity plea. American Journal of Psychiatry, 140, 401-405.

Stone, A. A. (1984). The ethical boundaries of forensic psychiatry: A view from the ivory tower. Bulletin of the American Academy of Psychiatry and Law, 12, 209-219.

United States v. Byers, 740 F. 2d 1104 (D.C. Cir., 1984), cert. denied, 104 S. Ct. 717.

United States v. Downing, 753 F. 2d 1224 (Third Cir., 1985).

Walker, N. (1978). Crime and insanity in England, Volume I: The historical perspective. Edinburgh: University of Edinburgh Press.

Wardle, P. (1984). R. v. Abbey and psychiatric opinion evidence: Requiring the accused to testify. Ottawa Law Review, 17, 116-.

Weiner, B. A. (1984). Ethical issues in forensic psychiatry: From an attorney's perspective. Bulletin of the American Academy of Psychiatry and Law, 12, 253-261.

Weinstein, H. C. (1984). How should forensic psychiatry police itself? Guidelines and grievances: The AAPL Committee on Ethics. Bulletin of the American Academy of Psychiatry and Law, 12, 289-302.

Weinstein, J. B. (1986). Improving expert testimony. University of Richmond Law Review, 20, 473-497.