My Position on Forensic Psychological Assessment and Testimony
My writings and expert witness testimony in the area of psychiatry and the law reflect a focus on providing the court with the latest scientifically-sound and generally accepted knowledge in forensic assessment. Historically, expert testimony entailed open-ended non-standardized clinical interviews, mental status examinations, and conventional psychological tests, especially projective tests. Expert testimony based on such approaches was of questionable reliability because of the problems of interviewer bias, bias in selectivity and interpretation of findings, and lack of comprehensiveness of assessment. Since Daubert the court has shifted away from ‘hired gun’ and ‘junk science’ expert psychological testimony to demand expert testimony that is:
2. supported by evidence about the basis of the expert opinions, and
3. relevant to the legal questions before the court.
First, the shift toward scientifically-based testimony requires expert testimony that is reliable, in that it is based on peer reviewed, testable, and generally accepted scientific findings, for which the error rate of the opinions can be reasonably known. In this post-Daubert era a new standard for the admissibility of expert testimony has been evolving, away from non-standardized tests/interviews toward the use of structured psychiatric interviews, normative psychological tests, and/or empirically-derived forensic tests. From a scientific perspective, structured psychiatric interviews as compared to non-standard clinical interviews have consistently yielded more reliable and valid findings because the questions, scoring rules, and interpretive rules are standardized in a way to minimize examiner, selectivity, or interpretive bias. Generally accepted normative psychological tests are based on established norms and empirically-derived cutting scores, so that it is possibly to render opinions about the calculated probability that a given individual does or does not have a given psychiatric disorder as compared to a normative population independently known to have that condition. Empirically-derived forensic assessment includes scientifically-based tests specifically developed to address legally relevant questions, like competence, criminal responsibility, or malingering.
Overall, my view of forensic psychological testing is firmly situated within the evolving post-Daubertstandard. You can find a more detailed review of my position on forensic psychological testing in a book chapter entitled, “The Evolving Standard in Forensic Psychological Testing,” written as an invited chapter for the American Psychiatric Association’s Textbook on Forensic Psychiatry (R.I. Simon & L.H. Gold, 2004; available as a download on this website). Essentially, I believe in a multi-method assessment, wherein at least several very different tests are used to assess the same thing, because incremental validity increases, and the error rate decreases when multiple testing instruments are used. Furthermore, my multi-method assessment uses a combination of structured psychiatric interviews, normative psychological tests, and empirically-derived forensic tests, along with a detailed review of available records, in order to maximize the reliability and validity of the expert opinions. Second, my approach tries to give sufficient description of the basis of the expert opinions. Third, I believe that forensic expert reports must address legally relevant questions, especially the ultimate legal question before the court. For example, historically, psychiatric mental status findings may not be directly relevant to the legal questions of competency or criminal responsibility. As another example, historically, many expert reports fail to address adequately the issue of proximate cause when assessing personal injury damages, and I believe that forensic psychological assessment can be planned that reasonably addresses the legally relevant question of proximate cause.
Areas of Expertise as a Forensic Psychologist
I have been involved as a psychological consultant or expert witness in a little over 150 cases over two decades. Essentially, there are three broad areas that define my expert witness work:
1. Forensic psychological assessment with respect to personal injury damages, psychiatric commitment, criminal responsibility, and custody;
2. The standard of care of psychiatric and psychological treatments; and
3. The reliability of testimony.
My approach to forensic psychological testing has been described above. With respect to the standard of care, as a psychologist who has actively taught continuing education seminars on a regular basis on state-of-the-art assessment and treatment for most of diagnostic groups found in DSM over the past two decades privately and also in the Division of Continuing Education of Harvard Medical School, my knowledge and expertise across psychiatric conditions remains current and comprehensive. With respect to the reliability of testimony, especially in the areas of trauma, abuse, and for investigative and interrogatory interviewing, I am the senior author of a major textbook, Memory, Trauma Treatment, and the Law (Norton, 1999), which was the recipient of awards from 7 professional societies including the Manfred Guttmacher Award for the outstanding contribution to forensic psychiatry given jointly by the American Psychiatric Association and the American Academy of Psychiatry and Law. I have testified in many cases on the long-term effects of childhood sexual and physical abuse, many for adult survivors of childhood sexual abuse and priest abuse. I have written on and testified on many cases involving the reliability of memory for trauma and abuse, including many cases on the issue of recovered memory for trauma and abuse. My testimony for the prosecution for the International War Crimes Tribunal for the prosecution of alleged war criminals of the former Yugoslavia in the late 1990s helped establish the standard of reliability of memory testimony before the tribunal by victims of severe war atrocities, a standard that was upheld on appeal, has served as a standard since, and also withstood a recent challenge on another case before the tribunal that also resulted in a conviction.
Below is a list of the main areas of my expert witness consultation and testimony along with documentation of my main work in these areas:
- Scientifically-based clinical/forensic assessment:
See my invited book chapter, “The Evolving Standard of Forensic Psychological Testing,” in R.I. Simon & L.H. Gold’s Textbook of Forensic Psychiatry by the American Psychiatric Association. (Downloadable on this site)
- Damages in personal injury cases
Long-term effects of child abuse and priest abuse (70)
D. Brown (1990) “The variable long-term effects of incest,” is a book chapter that is one of the first papers to summarize the professional literature on the long-term effects of incest. It was awarded the “Best Clinical Paper” by the International Society of Clinical and Experimental Hypnosis. Brown (2001) “(Mis)representations of the long-term effects of childhood sexual abuse in the courts,” was originally published in the Journal of Child Sexual Abuse, 9, 79-107, but then re-issued as a full book/monograph.
Long-term effects of complex trauma-related disorders
My chapter on emprically-derived forensic assessment of complex trauma-related disorders, including how to handle the issue of apportioning proximate cause in complex trauma cases can be found in “Assessment of Attachment and Abuse History, and Adult Attachment Style,” in C.A. Courtois & J.D. Ford (Eds). Treating Complex Traumatic Stress Disorders: An Evidence-Based Guide (Guilford, 2009).
Injury in other trauma cases, e.g. industrial and moving vehicle accidents, war trauma, boundary violations and sexual misconduct by health professionals
Special interest in assessing the relative contribution of attachment status, trauma/abuse, and other pre- or post-existing contributions to overall adult psycho-pathology and in apportioning proximate cause in personal injury cases
I am currently finishing an orphanage study that discriminates between the relative contribution of childhood attachment status and abuse in later childhood to overall adult psycho-pathology. In this study 34 adult survivors were sexually abused in childhood, half of whom had a secure attachment status and half of whom has an insecure attachment status. Sexual abuse per se predicted circumscribed axis I psychiatric conditions in adulthood like PTSD, anxiety conditions, depression, and somatization. Insecure attachment aggravated by sexual abuse in later childhood predicted complex trauma with multiple psychiatric conditions which included a personality disorder and major dissociative disorder diagnosis, and also multiple addictive behaviors, in addition to the above Axis I conditions. This study shows that assessment of proximate cause in child abuse survivors must include an assessment of attachment status.
- Psychiatric commitment
- Criminal responsibility, especially with respect to assault and murder associated with dissociative conditions, seizure disorders, and major mental illness
- The contribution of attachment status to parental competency in custody disputes
Certified in administration and scoring of the Adult Attachment Inventory. Senior author of award-winning textbook, Attachment Disturbances in Adults.
- Damages in personal injury cases
- Standard of Care in Mental Health Treatment as Pertains to Malpractice Suits
Refer to the chapter on the standard of care for phase-oriented trauma treatment in my book Memory, Trauma Treatment, and the Law. With respect to the the standard of care for clinical hypnosis, I am the author of 4 textbooks on hypnosis, including a standards text, Hypnotherapy and Hypnoanalysis (Erlbaum, 1986), and well an invited chapter on hypnosis in the newest edition of H.I. Kaplan, A.M. Freeman & B.J. Sadock (Eds.) Comprehensive Textbook of Psychiatry (2009).
- Standard of Care with respect to certain psychiatric conditions, namely trauma-related disorders, complex trauma disorders, and affective disorders
- Standard of Care with respect to certain treatment approaches, namely phase-oriented trauma treatment and hypnotherapy
- Reliability of Testimony
- Memory for trauma
I have written a textbook devoted to the issue of memory for trauma, Memory, Trauma Treatment, and the Law (Norton, 1999). My testimony for the prosecution in Furundiza before the International War Crimes Tribunal in the Hague helped establish the standard (upheld on appeal) for the reliability of memory testimony for victims of extreme war atrocities.
- Recovered memory, repressed memory, dissociative amnesia
I have written two monographs reviewing the scientific evidence on repressed memories for childhood sexual abuse, both appearing in the Journal of Psychiatry and Law, 1996, and 1999, and have given expert testimony in a number of Daubert hearings on this topic.
- Refreshed memory by amytal, hypnosis, or the cognitive interview
Refer to the book chapter Brown, D. Et al. (2002) “Special methodologies in memory retrieval: Chemical, hypnotic, and imagery procedures,” in R.I. Simon & D.W. Schuman (Eds.) Retrospective Assessment of Mental States in Litigation: Predicting the Past (American Psychiatric Press). I also wrote a very recent review on hypnotically refreshed memory in a forensic setting in the recent (2009) Comprehensive Textbook of Psychiatry. I testified on the issue of hypnotically refreshed memory on a murder case on appeal before the Ontario supreme court.
- Evaluating the reliability of eyewitness testimony
A chapter of Memory, Trauma Treatment, and the Law reviews the scientific literature on memory for eyewitnessing crimes. I testified on the reliability of eyewitness testimony in the Cermis cable car case before a U.S. military court.
- Evaluating the issue of taint in child abuse investigative interviews
I have consulted or testified on the issue of taint of children’s testimony allegedly as a result of suggestive investigative interviews on two cases before the Pennsylvania Supreme Court and one case before the Massachusetts Supreme Court.
- Evaluating the issue of fair and undue coercive persuasion in police interrogations and the question of unfair inculpatory persuasion and false confession
D. Brown, “Fair and Undue Influence in Police Interrogations,” presentation at the International Cultic Studies Association, Madrid, Spain, July, 2005.
- Assessing the difference between genuine psychiatric conditions, factitious disorders, and malingering
Invited guest editor, Special edition on the interrelationship between factitious behavior, dissociative disorders, and the law, 1999, Journal of Psychiatry and Law, 27, 363-706.
- Memory for trauma