The Voir Dire of Forensic Experts: Issues of qualification and training
[Subtitle: "Sheepskins for sale: Shortcut to Slaughter?]
Presented at
American Psychological Association
Boston, MA. 8/22/99
Stephen L. Golding, Ph.D.
Professor
Department of Psychology
Adjunct Professor
College of Law and Department of Psychiatry
University of Utah
Salt Lake City, UT
web: www.xmission.com/~sgolding
Revision date: 8/4/99
In the centuries old ebb and flow of concern about the role of expert testimony in our legal system(1), there has been a widespread recognition amongst scholars(2) {Berger, 1994; Imwinkelried, 1996} and practitioners alike that the "expert problem" can be conceptualized as involving three separate issues (assuming a pre-qualification regarding relevancy to a fact or issue in dispute):
a) qualification of an area of expertise,
b) qualification of the methods and procedures of analysis associated with that area of expertise, and
c) qualification of the expert applying those methods and procedures within an area of expertise
The first two issues have received the most attention, and the recent series of Supreme Court opinions (Daubert, Joiner, Kumho) have been the subject of much discussion and debate. Clearly, these issues may overlap with the qualifications, per se, of the expert, as noted in Christophersen v. Allied-Signal
"... although credentials can be significant, they alone are not necessarily determinative. The questions, for example, do not stop if the expert has an M.D. degree. That alone is not enough to qualify him to give an opinion on every conceivable medical question ... because the inquiry must be into actual qualification - sufficient to assist the trier of fact. The trial judge here rightly scrutinized [the expert's] lack of specialized experience and knowledge." [939 F. 2d 1106, 1112-1113 (5th Cir. 1991)]
Nevertheless, the various issues which arise in the qualification of the expert are rarely addressed in discussions of the problem, attempts at reform, or in the empirical or professional literatures on expert testimony. Today I want to address just one facet of this problem - the role of specialty credentials in the qualification process.
A traditional theme that pervades the controversies over expert testimony is whether attention should be paid to the admissibility as opposed to the weight accorded a particular expert's opinions and evidence. On rational grounds, it seems clear that both are inextricably involved. Thus, whether or not an expert's credentials are addressed during voir dire or during cross-examination, it is clear that the expert's credentials are a critical part of the process by which the trier of fact filters or processes the expert's evidence. There have been only scattered attempts to understand how an expert's credentials influence the believability of his evidence {Shuman, Champagne & Whitaker, 1996a; Shuman, Champagne & Whitaker, 1996b}. Two decades of work on jury decision-making, however, makes it clear that complex information processing, involving pre-existing attitudes, schema and prototypes about experts and expert evidence, and their interaction with the (objective) "evidence" as presented , will be causally associated with the effects an expert's qualifications have on the inferences drawn from an expert's evidence. I do not want to address the threshold issue - what are minimal qualifications for designation as an expert(3), and an "expert in respect of what," but rather want to focus on the role of advanced specialty designation.
To my knowledge, no one has conducted a study of the what the term "diplomate" or "board-certified in ..." means to a typical juror, judge or attorney. For the sake of argument, however, I believe it is reasonable to assume that for most it connotes something like "special" training, knowledge or experience(4). Unfortunately, most training texts and materials used in legal education present scant information on this topic, beyond a cursory discussion of licensure. [ {Shuman, 1998} is a clear exception]. In that there has been an exponential increase in the number of individuals who claim to be Diplomates of "X(5)," I would like to explore whether or not there are objective and meaningful differences in the meaning of this "credential," the role it plays in the appraisal of expert evidence, and possible attempts at reforming or regulating this term as it applies in legal settings (or beyond).
Firstly, let me state the obvious. Public reaction to discovery of the "newer" diplomating procedures is likely to be skepticism and a clear inference that the organizations are diploma-mills with "sheepskins" for sale(6). In my experience, attorneys and judge's who hear about the details of such alternative diplomating organizations are quick to reach similar conclusions. Exploration of the actual differences between such "alternative" and more "traditional" paths to diplomate status, help triers of fact to reach more informed conclusions about what such alternative credentials "mean." Secondly, one needs to state clearly that the terms "diplomate" and "board-certified" are not generally regulated or given any legal meaning in almost all jurisdictions(7)
. I am unaware of any legal attempt to change this situation through either a trademark confusion case, or some form of commercial misrepresentation or fraud case (although MacDonald [1999] reports such a case may be forthcoming in Missouri). Thus, for the time being, one must assume that there is no existing legal barrier in almost all jurisdictions to anyone setting up a diplomating procedure in any professional field. That this is likely to change in the near future is telegraphed in the newly issued National Benchbook on Psychiatric and Psychological Evidence and Testimony {Parry, Hominik, Skoler & Altschwager, 1998, p. 54}, which states, "Judges must also be wary of witnesses claiming certification by various "mail-order" boards, that do not require an oral examination or other indicia of a rigorous qualifying process."
While it is regrettable that the Benchbook did not go further in its analysis of how "vanity" or "mail-order" boards differ from "traditional" boards, it is clear that the Benchbook recognizes the differences, and does identify the essential difference. From a psycholegal and professional practice standards perspective, however, the context of these differences needs to be explored, i.e., why would one choose an alternative diplomating organization rather than the "traditional" organization?
I would like to argue that a detailed examination of the differences between two of the "model" organizations, the American Board of Forensic Psychology (the "traditional") and the American College of Forensic Examiners(8) (the "alternative") makes clear that the two approaches are radically different and that the "alternative" is cheaper financially, but extremely costly in terms of professional practice when its "shortcut" nature is revealed in either voir dire or cross-examination.
Brief historical background
Historically, the term "diplomate," as used in psychology, psychiatry and other medical or applied disciplines or specialties has broadly connoted an advanced level of peer-reviewed training, knowledge, and experience in a defined specialty. It is often used synonymously with the term, "board-certified." All of these traditional organizations share a common history, namely they emerged from the "parent" professional organizations (e.g., American Medical Association, American Psychological Association), although for legal and financial reasons, they operate independently. They emerged from the parent professional organizations because of a need to have mechanisms for the recognition and certification of advanced specialties within the professions. The traditional specialty boards, regardless of their area or discipline, have a number of rather common characteristics, and these may be used to distinguish them from other "diplomate granting" organizations.
Comparison of a "traditional" and "alternative" Diplomate
For illustrative purposes, the differences between diplomate status with the American Board of Forensic Psychology (ABFP) and the American Board of Psychological Specialties (ABPS) [part of the American College of Forensic Examiners].
| ISSUE | ABFP | ABPS | Comment |
| Organizational History | Parent organization (American Board of Examiners in Professional Psychology) developed out of the American Psychological Association in 1947; American Board of Forensic Psychology formed in 1977 | Has no history of professional liaison or relationship; founded by individual in 1992. | Opens the question of why the alternative was founded, especially in light of the "vanity" board issue |
| Professional Credentials Required | Doctoral degree in
psychology from
accredited institution
Licensure or statutory certification as a psychologist Substantial formal training in forensic psychology |
Doctoral degree in
psychology from
accredited institution
Licensure as a psychologist No formal training in forensic psychology required |
It is critical to explore how the diplomate candidate obtained his/her forensic training and supervision. ABPS candidates could get sufficient points to qualify for waiver without ever attending any class, workshop or having forensic supervision |
| Professional Credential Verification | Doctoral transcripts,
license and training
documentation must be
submitted to review
committee who reviews
materials and accreditation
status of institutions
granting degrees
Approximately 50 percent are returned to applicant for documentation of hours, supervision, continuing education or internship requirements Approximately 10 percent of applicants fail at this stage |
No published mechanism
for review
Applicant required to submitted curriculum vita and license and sign statement that information is true and that they "qualify" No known data on number of applicants who must document their training; experience or supervision transcripts not required No known data on any applicant failing at this stage |
MacDonald (1999) states
that "Dr. O'Block himself
ultimately determines who
gets a credential based
upon his review of an
applicant's background"
|
| Specialty Training and Supervision Requirements | Minimum of 1000 hours of
experience as a forensic
psychologist over five year
period, four of which must
be post-doctoral
Minimum of 100 hours of supervised specialty supervision and/or approved continuing education |
Five years of "experience"
but need not be in forensic
psychology; 1000 hours of
experience required after
1998 [in 1997], or after
1999 [in 1998]; in reality,
drop-dead date for waiver
of hours of experience has
been "bumped" one year,
each year, since inception
in 1992
No required supervised experience or continuing education; 100 hours after 3/21/99 ; date has been "bumped" one year, each year, since inception in 1992 |
(If applicable based upon
expert's history:
"Doctor, from what you've said about your training, you would not qualify to even apply to ABFP, because you don't ......, but ABPS qualified you when your check for $350 cleared the bank, isn't that correct?" |
| Specialty Training and Supervision Verification | Experience and supervision requirements must be documented, submitted and reviewed | Not required; no mechanism for review or verification | |
| Peer-review of specialty work samples | Two extensive work
samples, done
independently, must be
submitted by all
candidates
Work samples reviewed by two professionals according to published criteria Appeal or review mechanism when reviewers disagree Approximately 40% fail the work sample review process(9) Can resubmit new work samples if original failed |
May be waived until
3/1/99; one required
thereafter; drop-dead date
has been "bumped" yearly
since inception (1992)
No known mechanism nor criteria No known mechanism No known data on failure rate; none known to have failed(10) No known mechanism |
(If applicable based upon
expert's history:
"Doctor, let me understand this better. You could have chosen to have your professional work and your standards of evaluation, practice and testimony evaluated by a group of your peers, but you chose to get your sheepskin with this point system. That's a fact, Doctor, but my question is, Why would you choose a shortcut?" |
| Appeals Procedures for Work Sample Failure | Committee reviews reasons for failure and gives independent review | No known mechanism | |
| Waiver of Work Sample | Not permitted for any applicant | Waiver of work sample
permitted if applicant has
100 "points" before 3/1/98;
200 "points" thereafter [in
1997];waiver if 300 points
before 3/1/99 or 400
before 12/31/99 [in 1998]
"grandfather" date has
been "bumped" yearly
since 1992
50 points for doctoral degree 5 points for each year of experience even if not in forensic psychology 25 points for each authored book;15 points for each authored article; 10 points for each paper presented at professional meeting [used to be 15/10/5]; 10 points for each forensic evaluation; 2 points for any psychological evaluation [used to be 5 per forensic evaluation conducted] |
(If applicable based upon
expert's history:
"Doctor, you had enough points to get your Diplomate from ABPS without ever having your work reviewed by your peers, isn't that correct?) Generally, provides an opportunity to reiterate to the trier of fact connection between "shortcut" and problems with the expert's methods, procedures, logic and opinions - i.e., are these suspect of being ill-founded or a shortcut as well? |
| Waiver of Work Sample Continued | 20 points for "any honor"
received
25 points for any other board, diplomate or fellow status 25 points for each psychological or scientific organization 5 points for each meeting attended |
||
| Oral Examination on Ethical and Professional Practice Issues | Required of all applicants
Extensive training of oral examiners and examination takes place according to published (but confidential) criteria |
Not required; may be waived by "points" if application received prior to "bumped" grandfather dates. | Sample question from
MacDonald (1999):
"In giving testimony at a deposition, it is appropriate to engage in shouting matches or arguments with abusive attorneys. True or False?" |
| Waiver of Examination on Ethical and Professional Practice Issues | Not permitted | See point system and "bumped" grandfather dates | |
| Oral Examination on Specialty Knowledge | Required of all applicants based upon their approved work-samples and defined areas of specialization | Not required; may be waived by "points" if application received prior to "bumped" grandfather dates | "Why do you choose to represent yourself as a specialist in ... given that you have never demonstrated that specialized knowledge or ability to your colleagues?" |
| Waiver of Examination on Specialty Knowledge | Not permitted | See point system and "bumped" grandfather dates | |
| Oral Examination on Forensic Knowledge Outside of Specialty Areas | Required of all applicants based upon a published (but confidential) list of critical cases and issues in a variety of forensic areas outside of applicant's specialties | Not required; may be waived by "points" if application received prior to "bumped" grandfather dates | "What other areas do you routinely address in your forensic practice, and have you been examined in respect of your specialized knowledge in those?" |
| Waiver of Oral Examination on Forensic Knowledge | Not permitted | See point system and "bumped" grandfather dates | |
| Appeal of Oral Examination Failure | All examinations taped to facilitate complete appeals to standing committee. | No known mechanism | |
| Failure Rate for Oral Examinations | Averages 50-60%(11) | No known failure rate | |
| Administrative Mechanism for Ethical and Professional Practice Complaints against Diplomates | Standing committee meets
bi-annually to review and
hear complaints
Liaison with American Psychological Association's Ethics Committee (adjudicated complaints resulting in actions from reprimand and higher are passed on to Diplomate Ethics Board) Some diplomates have had their status revoked due to ethical violations |
None published nor known | |
| "Grandfathering" | Not permitted for any applicant | Has been permitted since inception and continues on "bumping" schedule. Each advertisement since inception has specified new date for grandfathering | Presentation of the continuous history of "blue light specials," get your diploma now before the grandfather period ends, speaks for itself to the trier of fact |
The comparisons above, when used in whole or in part, in either voir dire or as part of a cross-examination, serve to demonstrate, in concrete detail, the steps at which the expert has chosen to take a short-cut. Language from their own testimony, as well as from published brochures, can be used to further undercut their credibility, because the materials stress the "rigorous" examination process, how one must be "distinguished" in one's accomplishments, how ACFE "elevates standards," and "our commitment to knowledge, education and ethics." Better yet is that "ACFE members should not misrepresent or overstate their credentials, education, training, experience , or membership status." To add insult to injury, Diplomate status in ACFE includes the following "benefits,"
"The benefits of Diplomate status include recognition by the world's largest forensic organization(12) that the Diplomate holder:
Summary
Obviously, having a diplomate in forensic psychology from the "traditional" organization does not guarantee current competence, ethical practice, or the accuracy of one's opinion. However, it does guarantee that the individual has chosen to have his or her professional work reviewed by peers, has had the nature, quality and sufficiency of their professional forensic training scrutinized, and has stood for a wide-ranging and meaningful examination of their specialized and well as general knowledge of forensic psychology, and of ethical and professional standards of practice. The alternative choices end up speaking for themselves to triers of fact when they are explored in detail(13), either during voir dire or cross-examination.
The increasing financial impact of managed care, coupled with continuing confusion within the legal profession as to the meaning and boundaries of forensic expertise, has led to a growing awareness within the forensic psychological and psychiatric community of a need to provide both the professional mental health and legal communities with guidelines as to how one can distinguish, at the level of the initial qualification of experts, between legitimately distinguishable levels of forensic expertise, and between diplomates who have achieved their status by traditional means and those who are members of so-called "vanity" diplomate organizations. This presentation has summarize a variety of training, knowledge and experience guidelines that can be used to distinguish among levels of expertise. It also summarizes behaviorally verifiable organizational, training, supervisory, experiential and examination-peer review differences between individuals who hold "traditional" diplomate status and those who have achieved "diplomacy" from other types of diplomate granting organizations.
.
Berger, M. (1994). Evidentiary Framework. In J. Cecil, C. Drew, M. Cordisco & D. P. Miletich (Eds.), Reference Manual on Scientific Evidence (pp. 37-118). Washington, D.C.: Federal Judicial Center (www.fjc.gov/EVIDENCE/science/sc_ev_sec.html).
Imwinkelried, E. J. (1996). Evidence law: Uncertainty of the scientific enterprise. The Champion, 20(6), 12-13;15;50-57.
MacDonald, E. (1999, 2/8/99). The making of an expert witness: It's in the credentials. Wall Street Journal, p. B!
Parry, J. W., Hominik, D., Skoler, G., & Altschwager, H. (1998). National Benchbook on Psychiatric and Psychological Evidence and Testimony. Washington, DC: American Bar Association.
Shuman, D. W. (1998). Psychiatric and psychological evidence Second Edition. Colorado Springs, Colorado: Shepards/McGraw-Hill.
Shuman, D., Champagne, A., & Whitaker, E. (1996a). Assessing the believability of expert witnesses: Science in the jurybox. Jurimetrics, 37, 23-33.
Shuman, D., Champagne, A., & Whitaker, E. (1996b). Juror assessment of the believability of expert witnesses: A literature review. Jurimetrics, 36, 371-382.
1. A relatively unexplored issue concerns the experience and controversies associated with expert evidence in legal systems that do not share our Anglo-Saxon legal traditions.
2. Electronic copies at www.fjc.gov/EVIDENCE/science/sc_ev_sec.html
3. Berger's (1994) treatment of this issue in the Reference Manual on Scientific Evidence is a good starting place for tracking cases on traditional qualifications of an expert.
4. In tort law, designation as a diplomate or board-certified medical or mental health professional also leads to an increase in the standard of care expected.
5. To the best of my knowledge, no accurate count exists. The seemingly largest organization that offers diplomate status without the traditional forms of examination and peer review (see article for details) is the American College of Forensic Examiners, which current claims 12,500 members [as of 7/31/99, www.acfe.com]
6. {MacDonald, 1999}. This article in the Wall Street Journal also contains an interesting account, denied by the founder of ACFE , of a history of alleged plagiarism as well as an account of the founding of ACFE and its procedures. The article does not reflect the history of the yearly postponement of "grandfathering" dates noted below.
7. An apparent exception is Florida, which regulates the use of "board certification" language for individuals licensed under its Medical Practice Act. [Fl. Statutes, §458.3312 Specialties.--A physician licensed under this chapter may not hold himself or herself out as a board-certified specialist unless the physician has received formal recognition as a specialist from a specialty board of the American Board of Medical Specialties or other recognizing agency approved by the board. However, a physician may indicate the services offered and may state that his or her practice is limited to one or more types of services when this accurately reflects the scope of practice of the physician."
8. This is the parent group, which subsumes ten other "Boards," ranging from the "American Board of Forensic Accounting" to the "American Board of Psychological Specialties." The later (ABPS) in turn offers diplomates in 19 specialty areas. Thus many members add BCFE (Board Certified Forensic Examiner) and Fellow, ACFE (American College of Forensic Examiners), as well as other possibilities. Almost any "specialization" seems to count an members of ACFE (on the web at least) often list several "diplomates" If I were to apply and was approved for membership, in addition to my membership in the "traditional" diplomating organization (ABFP - American Board of Forensic Psychology), I would therefore list myself [based upon the ABPS list of diplomate specialties] as Stephen L. Golding, Ph.D. ABFP, [Fellow ACFE, DABPS [Diplomate, American Board of Psychological Specialties], DABFCP [Forensic Clinical Psychology], DABFP [Forensic Psychology], DABPAET [Psychological Assessment, Evaluation and Testing], DABCCE [Child Custody Evaluation], DABSA [Sexual Abuse], but, given my work history, might not qualify a dozen or so other areas. Thus, Stephen L. Golding, Ph.D., ABFP, ACFE, DABPS, DABFCP, DABFP, DABPAET, DABCCE, DABSA. (Somehow, that doesn't seem long enough, given my age and experience, but it suffices to make the point.) It is unclear from the application materials if each board-certification, beyond the "master" board [DABPS requires $350, but it is clear that one can only apply for one at a time. Many who list their credentials on the web list several, and perhaps there is a discount for more than one.
9. Based upon data made available by ABFP
10. This could obviously change, if ACFE institutes some examination or review process, as they promise, after 12/99
11. Based upon data made available by ABFP
12. Literally a true assertion
13. Another liability that an expert who takes the "shortcut" approach faces, has to do with
the "standard of care" to which they will be held in tort actions. At least since Coleman v.
Wilson 88 A 1059,1060 [1913](14)
14. "A physician holding himself out as having special knowledge or skill ... is
bound to bring to the discharge of his duty ... not merely the average skill and
knowledge possessed by general practitioners, but that special degree ... possessed by
physicians who are specialists in the treatment of such disease, in the light of the
present state of scientific knowledge"