Examining the Mental Health Expert

in Cases of Child Abuse:

A Psychologist's View

_________

By James E. Hord Jr., Ph.D.

_______________________________________________________________________

In child abuse cases the stakes are terribly high. Certainly there can be little argument that children need the court's protection from child abusers and pedophiles. However it is also true that innocent people can and have had their lives ruined by the mistaken interpretation of a young child's statements. It is a complex issue that deserves the most careful consideration by the court system. Mental health workers dealing with such cases are often called upon to testify in court. They are called by the defense attorney, but more commonly they are called by the prosecution.

There are several areas that deserve particular attention when dealing with the expert witness in child abuse cases. This article focuses on the efforts of the defense, but the comments could apply equally well to the prosecution attorney. The areas that will be addressed will center on factors concerning the witness before the court, as well as issues pertaining to the alleged victim.

I. Types of Mental Health Experts:

Experts in mental health come in several forms today. Their credentials include both academic and professional degrees. Academic degrees, i.e. degrees that are determined by the educational criteria, include the doctorates Ph.D. and Ed.D., and master's level degrees such as the M.A., M.S. and M.S.W. Professional degrees, so defined by the college or professional school offering the degree, include the Psy.D. in psychology, D.O. and M.D. in medicine. While some witnesses list more than one degree, most list only the highest degree earned. By tradition, when two or more degrees are listed the highest are listed last (eg Joe Smith, BA, MA, Ph.D.). If one has a professional degree and a higher academic degree then both are usually listed. Most psychiatrist have the D.O. or M.D., but a few have also obtain the Ph.D. in a related field. Such practitioners will list Joe Blow, M.D., Ph.D. You should not assume the field in which the Ph.D. was obtained, since it will not necessarily be medicine or psychology. Finally, you should recognize that some practitioners will list initials of organizational recognition or affiliation with their degree listing. While most professionals frown on this practice and see it as inappropriate and intentionally misleading, you will find it done by many social workers and someother individual practicioners.

II. The Jury's Perception of the Expert:

The attorney faced with cross examining the expert in mental health should always consider the weight of the testimony in light of the perception of the witness as an expert. The actual level of knowledge or professional skill of the witness is of no real value in the courtroom. The impression of those characteristics however, is everything. The expert will be asked to describe his professional background and experience as a way of increasing the perception of value of his testimony. To attack those credentials is in many cases, foolhardy. Often it simply offers the witness additional opportunities to restate his or her list of impressive experiences in the field. It can generate sympathy for the witness in the minds of your jury. However, it is entirely appropriate for the opposing attorney to attempt to establish for the jury that credentials and accomplishments do not translate into infallibility, nor to a statement of accuracy in the specific case before the court.

One of our local defense attorneys is very skilled at respectfully addressing the witness with this question. "Doctor, is it possible in your opinion, that my client could have an obscure brain tumor or disorder, that could cause him to exhibit the behavior in question?" More often than not, the response is, "Yes that is possible!". The witness, not wanting to appear ignorant or incompetent, has been seduced into giving fantasy the weight of fact! Medical and psychological sciences simply fall short of an answer to such a hypothetical, and to not recognize that limitation is a major failing of the witness. In this situation, the attorney has obtained a foolish statement not from his expert witness, but from the witness called by the other side. What a clever move.

Obviously this attorney has now suggested the possibility of diminished capacity to the jury, and that is likely to be the primary goal. However, if the attorney chose to do so, there is another logical line of questioning to pursue. The witness could be asked to define the logic of his answer, to describe relevant research indicating the possibility of specific behaviors from previously undiscovered brain tumors, or describe any link between the specific behaviors and specific lesions. At this point the expert must fumble through some vague presentation of organic lesions, resulting psychotic disruption of thought processes, frontal lobe or psychomotor epilepsy, or other generalized concepts. However, since he has already testified that the tumor/behavior link is possible, rather that saying that it cannot be ruled impossible, he is now obligated to support the concept in fact. It simply cannot be done! A reasonably skilled attorney should be able to bring the expert to agree to this point, and thereby cause his entire testimony to appear questionable since he seems to have difficulty in knowing the difference between what is known, and what he is not known! And this quagmire was created by his own unwillingness to use the very powerful, and accurate phrase, "I don't know."

The above scenario points out a simple truth, i.e. that there is a difference between fact and belief. Professionals in any field, human that they are, are subject to the same reasoning flaws as everybody else. This does not invalidate the witness' opinion in the case before the court, but it does indicate that neither logic nor opinion is infallible.

III. The Expert's Perception of Self

The attorney should realize that the expert may feel himself to be under extreme pressure to be compelling in his testimony. He is likely to be very egocentric in evaluating the importance of the his testimony before the court. I have seen mental health witnesses pressured into saying untrue, illogical and nonsensical things in response to cross examination. In one recent case, because of violations of the licensure laws that were contained in the testimony of one witness, I had reason to write a letter of censure to the individual involved. Although he was a master's level practitioner, he had represented his practice as "psychological" and had shamefully misinterpreted several important psychological concepts such as "disassociation". Later, in talking to this person, he admitted to all of the infractions, promised to never do it again, stated that he knew better but got carried away while attempting to respond to a very aggressive cross examination, but then added, ".. although the guy was clearly guilty!". Since his testimony by his own admission was poppycock, I suggested that perhaps the defendant was not guilty. To this, the expert replied, " I know he was guilty because there was an eye witness!". It is unimportant that the eye witness in this case was a very histrionic mother, who admitted that she had in the previous week watched several videos about child abuse. What is important is that this "expert" had structured his presentation around a belief that was formed before he saw the victim! In point of fact, no expert opinion was formed, but a lay opinion was given the weight of expert opinion because of the ignorance of the particular "expert"! Such presentations to the court should be turned into an asset by the defense as opposed to being left in limbo with arguments for and against their content. Juries can recognize nonsense if it is reasonably pointed out to them.

The witness is likely to be the only one in the courtroom who knows the strengths as well as the weakness of his opinion. He will want to shout the strengths and hide the weaknesses. He will describe the weaknesses, but you must ask the right questions. During cross examination, the attorney may elect to ask questions only about the strong points presented by the expert. That may well be a tactical mistake. I know that I look forward to an aggressive cross examination as a chance to make my major points even stronger. The expert has been trained by the educational process to be a good debater. He is the only expert in his field in the courtroom at that time, and he knows it! To attack his stated opinion simply allows him to state that opinion again, and again, .... etc. There will be weak points in his evaluation, and the attorney should seek them out. Often the expert will not see them himself, but they are there. Assume that the witness has offered testimony about the range of tests that he administered to the child, and then consider the following hypothetical exchange.

A. "Doctor, which of the tests that you gave this child were the most helpful in forming your opinion?"

E. "I would have to say that the Children's Apperception Test and the Projective Story Telling Cards".

A. "Then is it fair to say that the Draw-A-Person and the Rorschach tests that you also administered, were not very helpful?

E. "Yes, in this case."

A. "Doctor are those tests ever helpful in child abuse cases?" ( If not, why were they given here?)

E. "Yes they very often are helpful."

A. "Can you describe the kinds of things that abused children often provide in their response to these instruments that make the tests useful in those cases where they are helpful to you in forming your conclusions?"

At this point the witness will describe a flowing account of significant features that were not found in this case, but are often present in child abuse situations. The witness is now arguing against his own conclusions in the view of the jury. That is valuable input, and much better for the defense than hammering away at points that the expert should easily be able to defend or support. The witness, in re-direct, should be able to offer some plausible explanation as to why the particular tests did not produce data in line with other test results, but the jury now knows that not all of the test evidence pointed to the same common conclusion.

You should be aware that the psychologist is trained in the use and interpretaion of test materials, and will likely refer to such testing in his/her testimony. No other field routinely offers training in this area, yet other practicioners will occasionally refer to test data or test results. It is very likely that such witnesses will be unable to explain the basic factors of test design, reliability, validity or interpretice rational in response to questions in this direction.

In examining the psychiatrist, be aware that there are popular phrases that occur commonly in medical and psychiatric testimony, that are meaningless. Such phrases are so routinely used that the psychiatrist will feel comfortably entrenched behind the phrase, and not consider that the meaning of the phraseologh may be questioned. For example, instead of saying "I decided to give the patient medication", the psychiatrist may well say, "The patient needed medication because she has a chemical imbalance in the brain". That is nonsense. Ask the witness what chemical is out of balance, by how much, and how that was determined or measured in this case. It is simply popular professional mumbo jumbo and should not be allowed to go unchallenged in a court of law. Remember also that references to hypothetical constructs, theories, speculations etc. are simply references to somebody's guess. Guessing should have no weight before the court. Phrases such as "I could not rule out the possibility of anal penetration", are more correctly expressed as, "I found no evidence of anal penetration". Watch that language.

Before I leave this section on the expert witness's view of self, it may be somewhat enlightening if I include what I always remember as the most difficult question ever presented to me. In a first degree murder trial, the prosecutor (now a Circuit court judge) asked each expert witness very politely, "Doctor, are you ever wrong in your opinion?"

IV. Lead The Experienced Expert Witness Only With Great Caution!

Obviously you may be able to lead or even intimidate the expert witness. However it is a technique that is very risky and can easily backfire. The expert has one product, and that is his opinion. He will guard that product and will not want to see it misused or redefined. For this reason the experienced expert witness, unlike some others, will actively resist your efforts to lead unless he thinks that you both are going in the same direction. The court will allow the expert witness great latitude in resisting your efforts to re-shape his statements or opinions. As unbelievable as it now sounds to me, I once had a prosecuting attorney in a murder case ask, "Now doctor, this Rorschach test, ....that's the inkblot test where if your client sees a clown with a red nose it means that he is schizophrenic, isn't it?". Since his characterization was nonsense, I truthfully replied, "No Mr. Smith, that wouldn't be the Rorschach. I have no idea what test that might be." The attorney, now thinking that he was referring to the wrong test, went to his table and picked up his copy of "How to Examine Mental Health Experts", quickly scanned the section on tests, and then said,"No, no, no, that is the inkblot test..... you know, where one of the cards looks like a shark's open mouth with teeth all around it!". I replied, "Mr. Smith, in all my years of experience, I have never heard that response to the Rorschach from one of my patients!" The jury broke out in loud laughter, as did the Judge.

Some attorneys are very skilled in this area but others do great harm to their case by attempting to lead. At least one key to being successful involves the witness' perception of the attorney as attacking or being hostile. I know a few attorneys who cross examine in a very soft voice, smile, are polite.... and lead very successfully. Not everyone can do so however. Remember, (perceived) hostility is only effective when the recipient can be intimidated. That is true for all biological creatures, including mental health experts. The experienced expert witness will not be easily intimidated and your jury will likely identify with the conviction of his opinion. That's quite a risk, isn't it?

V. Consult or Depose!

It has been amazing to me over the years to note the number of times I am subpoenaed to court without having had contact with either attorney. Most of the time, no serious damage resulted, but in the vast majority of cases, the value of my testimony was not as positive as it should have been because the attorney who subpoenaed me to testify did not have the benefit of knowing what I was going to be able to say. Many times this situation resulted from the attorney having received a copy of my psychological evaluation. However it has occurred in cases where the attorney depended on his client's interpretation of what I thought about the case. (Shouldn't this be a malpractice issue?)

To not depose the opposing side's witness in states where that is allowed, seems to me to be playing a legalized form of Russian Roulette. However my opinion is obviously not shared by all attorneys, since deposition certainly does not appear to be the rule. The deposition of the opposing expert should direct your efforts to respond to that input. That response should be determined prior to court, rather that relying on your skill vs. the expert, divine intervention, or some other uncontrolled factor. Attorney's generally understand the importance of this line of reasoning, yet many, many times it is not followed.

In dealing with your own witness, a face to face, sit-down conference should certainly be arranged prior to court. A telephone conference is usually not an acceptable substitute. Questions should be put to the witness in the exact form that they will be presented in court. You should expect that the expert's concept of the importance of formal testimony in court will shape his or her responses differently than the same statements made in the more casual atmosphere of the office. In the courtroom the witness will strive to be accurate in his sworn statements using a framework of "operational definitions", where all variables are defined. Generalized questions will produce responses that will seem less than clear, or too vague to be of value to your case. I have heard psychologists criticized by attorneys because "they can't give a straight answer!". Yes we can and do, but when speaking in an absolute sense we need clearly defined questions. In the casual office setting, ambiguity is much more tolerable and generalized responses are more acceptable. This can lead to the attorney being somewhat misled as to how the witness will respond to specific questions of fact. I once explained to a rather hostile attorney that over a beer in a local tavern I might agree with him that "all ten men on Florida's death row were mentally disturbed", but when speaking as an expert in psychology, I would not agree to any such description about anyone whom I had not examined.

VI. Reliability of Child Testimony:

In practically every case, the defense will raise the issue of reliability of testimony by the child. The expert will be asked if children ever lie, or are they ever confused. No matter how the witness responds, the jury knows the answers to such questions. Instead, the expert could be asked to explain to the jury how children's testimony can be influenced and shaped. There is considerable information pertaining to that issue, and the expert can describe the effects of cuing, suggesting, modeling, etc. that take place in therapy and interviews by well meaning but biased or over-zealous therapists. The expert will never have been the only, and rarely the first person to talk with the child about the abuse issue. While he may defend his own interview style, he cannot endorse the interview or therapy behavior of others. This opens large areas of legitimate questions concerning the possibility of shaping of the child's testimony that should be considered. In my work with abused children I find that most have developed a very clear description of what they are expected to tell me about "the event". Part of my effort is to overcome that expectation and to have the child describe peripheral events to evaluate the likelihood that the event occurred in fact. This procedure also tells me a great deal about how the child is emotionally reacting to the experience in question.

Very frequently, the defense attorney will ask the witness if it is possible that the child may be describing accurate behavior, but could be attributing it to the wrong adult! That possibility is extremely small. Children's memory processes simply do not work in that way and to suggest the possibility by posing the question, is fairly futile. The expert can easily cover any possibility of such confusion of identity during interview, and having once been presented with that question in court, will probably do so routinely in the future. Asking the child to describe the color of the bathroom wall where the event took place may produce a valid identifying component that may point to only one possible abuser. A series of such tangential questions increases the perceived probability of accuracy in the question of identity.

Experienced examiners will routinely use such techniques that are not traumatizing to the child, but help differentiate between real and imaginary events. I once saw a ten year old girl who had told several interviewers that her daddy let her watch him "playing with himself". That phrase is unlikely to have been spontaneously developed by a ten year old who observed male masturbation! When I saw her she gave me the same description, and when I asked for clarification, she said, "he went like this".... and proceeded to place her closed fist in her lap and then repeatedly move it up and down as if to simulate masturbation. In spite of this seemingly convincing display, I then asked the girl to tell me where her father was (the bedroom), what position he was in (sitting in a chair) and what he was wearing (he was fully clothed). I asked if his trousers were pulled down or open in any way, to which the now confused girl said an emphatic "no". I asked if the daddy had anything in his hand when he did this, and again she answered "no". In other words, someone had obviously shaped this child's description, but when demonstrating the act of masturbation, they had omitted the penis! Even so, several examiners had been convinced of the girls description being indicative of abuse, as had I during the first part of my interview with the child.

VII. Syndromes, Scales and Classifications:

The attorney should not depend on a particular classification system to identify the presence or absence of behavioral clues as to victim or perpetrator. Some attorney's major thrust is to get the mental health expert to confirm evidence of the Child Abuse Adaptation Syndrome, or to confirm that the victim met 15 out of 18 traits of someone's Abused Child Characteristics scale, or that the alleged perpetrator did or did not meet the characteristics of an "Abuser Profile". If you present such a case you will likely see your argument destroyed by experts called by the opposition...... as it should be. Such syndromes, or lists of characteristics, are simply someone's publication of frequently found descriptors. They have no scientific basis, and they in no way relate to the individual. A psychologist who depends on such techniques, is most probably guilty of violating the American Psychological Associations code of ethics (sec. 1.03, 1.23, 2.01, 2.04, 2.05 and 7.02) and I would expect other professions to have similar standards.

Since this is a rather important point, I would ask you to consider any such syndrome, take any one descriptor from it and ask yourself, "does this occur in any situation other than child abuse?" . You will find yourself answering, "of course" to each item. In a lottery, does the number 2 frequently occur in the winning combination? How about the numbers 6,3,4 and 1? Then is it true that the predictable winning lottery number will consist of the numbers 26341? Of course it does not, although many lottery players are fond of such logic. The French philosopher Voltaire once said that a lottery is simply a state tax on stupidity! This view applies equally well to syndromes or rating scales. It is an enticing idea to think that if most abused children deteriorate in school performance, and a particular child did not, then the odds are good that the particular child was not abused. Oprah Winfry and Rosanne Barr come to mind as obviously high achievers who have described years of childhood abuse. In the mind of your jury, a useless argument may have the opposite effect than the one you intend.

VIII. Anatomically Correct Dolls, etc.:

While anatomically correct dolls and similar devices are used by many therapists, mental health workers and others, the reader should be aware that I am addressing only the use of such devices by the mental health expert for purposes of examining child abuse victims.

While experts differ in their examination techniques with children, it is my opinion that anatomically correct dolls, nude drawings and similar techniques are unnecessary. They rarely aid in the obtaining of truth and they introduce legitimate areas of criticism because of cuing. Think about it. The examiner shows the child the doll, suggests they name or identify the family member that the doll represents, then suggests to the child that they take the doll's clothes off! The normal child will pay much more attention to the genitalia of the doll than to the doll's leg, or nose, or foot! After all, he or she has seen legs, feet and noses on dolls before. They simply don't stand out. What we have here is the child and the approving adult, "playing doctor", i.e. an excuse to examine nudity. To ignore that fact is foolish. Yet I have seen reports produced by therapists describing such experiences that included phrases such as "She seemed fascinated with the doll's genitalia, pubic hair and buttocks....". Would we really expect an intelligent child to ignore such obvious differences on these unusual dolls? I contend that we would not.

The dolls do have an experiential impact however. I recently saw a young lady who had been taken to another psychologist by her father. The father gave the psychologist a picture, allegedly drawn by the girl, of a nude man. The child adamantly insisted that she did not draw the picture when she was asked about the drawing by the psychologist. The father said that he never intended the psychologist to show the drawing to the girl because he did not want her to be embarrassed by the drawing that she had done. When I saw the girl, she described the drawing while insisting that someone else had drawn it. She described it as being a person with both male and female privates! She explained that while it had a "thingy" hanging down in front like a man, it also had (pubic) hair like a woman! In other words, this 6 year old child simply had never seen an adult male in the nude, and did not know that men have pubic hair like women. The anatomically correct dolls, if they had been used before I saw the child, would have hidden that fact from discovery.

Neither the educational aspects nor the titillating effects of nudity necessarily lead to erroneous reports of specific behaviors having occurred. But I am suggesting that the examiner who does use such equipment should be very concerned with the cuing effects of the material. It is an area that should be explored in deposition in situations where such devices were utilized, if for no other reason than to help determine the competency of the examiner and the possibility of concept development as a result of the devices.

Final note

The issues that I have addressed are some that I feel are not always given the attention they deserve. I have tried to focus attention on these areas in the hope of improving the process leading to effective examination of the mental health professional. My comments are not focused on the wide range of other individuals involved in child abuse cases. A higher standard exists for the licensed mental health professional than for the agency employee and I believe that the recognition of "expert" before the court demands that such higher standards be met. In such important matters, a weak performance by the attorney does discredit to his/her profession, while a weak performance by the mental health witness does discredit to mine.

_______________________________________________________________________

James E. Hord, Jr. Ph.D.

Dr. Hord is a Clinical Psychologist in private practice in Panama City, Florida. He received his Doctorate in Clinical Psychology at the University of South Carolina in 1968. After completing an APA Clinical Internship at Milledgeville State Hospital in Milledgeville Ga., he created and ran a community guidance clinic in Marianna, Florida for 6 years. He was the Director of a multi-county drug abuse treatment program based in Panama City for 13 years. He has maintained a successful private practice for the last 27 years, in addition to his other activities. Dr. Hord is an active member of the Florida Psychological Association, the Southeastern Psychological Association and the American Psychological Association. He was Continuing Education Chair for FPA for 6 years. He has been very active in the area of evaluating abused children, and has seen approximately 1500 child abuse cases referred through the Child Abuse Team in Panama City. He has testified in State and Federal courts around the country, and several Courts Martial at various military installations in and out of Florida. The author wishes to thank attorneys Patrick Faucheux, Pamala Sutton and Carroll McCauley for their review and helpful comments in the preparation of this paper.

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