Forensic Psychiatry & its Case Practice

What you should expect from a science and its forensic scientists

Michael Welner, M.D.Chairman, The Forensic Panel

Forensic Psychiatry, Psychology, Neuropsychology, Neuroimaging

Death investigationDisputed confessionTrial competencyTrial in adult courtCapacity to form intentInsanity defenseCriminal responsibilityDuress and influenceInvoluntary intoxication

Justification Battered defendantAssessment of motiveViolence risk assessmentSex offender riskRetardationPresentencingHousing considerationsAlternatives to

incarceration

Forensic Behavioral Sciences – Societal

Relevance

Forensic Psychiatry & the Behavioral Sciences

Achievements: Mental health has matured into a scientific

discipline because of its efforts toward standardization

Diagnoses, standardized per Diagnostic and Statistical Manual (DSM) IV-TR, DSM V coming

Limitations: Contextual application of these standards to

the life cycle of the criminal case is lacking

Forensic Psychiatry – Human Evidence

Examinee – invested litigantFamily, friends, teachers, witnesses, business partners,

coworkers, cellmatesThe evidence – those interviewed – has conflicts, agendas,

& biasesDrawing out information is only one challenge; sensing

when there is more to draw out, and about what, and who from, is another

Reliable human intelligence can prove to be the most crucial element in a case

Quality of interviewing and questioning is pivotalForensic psychiatry’s responsibility: the pursuit of reliable

human evidence

Forensic Psychiatry – Integrated Human Evidence

Forensic psychiatry’s responsibility: integrating human evidence with pathology, physical and toxicology, investigative data

Accessibility of the doctorHearsay exceptionReconstruction of actions and ideas and motives

unavoidableCorroborating and contradicting layers of evidenceTiming and correlation to thoughts and symptomsCommunication - Phone, computers (multiple), emails

(multiple), Facebook, Tweet, TextMovements – Calendar, bank, credit purchases, travel, cell

tower

A Range of Responsibilities …with

attendant Challenges

Scientist – Truth as GoalExaminer – Objectivity as GoalForensic Science – Evidence and Fact-DrivenExpert – Relevant and Updated Knowledge

Scientist - Obstacles to Truth

Cost and time deadlines forcing shortcutsParties protected in non-disclosureNotes not releasedNo mandated videotapingAspirational amidst “different conclusions”Collateral consequences to an opinionPolitical consequences to an opinion

Examiner - Challenges to Objectivity

BiasNo rules for attorney conduct with

expertsOne sided discussionsSolitude

Forensic ScientistChallenging Evidence –Driven

Exams

Adversarial system impedes fact-findingReluctance of witnesses to cooperateOverreliance on self-report exams, testsPoorly preserved evidence

- Tox, computer files, cell phoneInsufficient emphasis on collateral

What is Expertise?

How does a judge tell?All a court will payThe practitioner-academic divideThe clinician-forensic specialist divideThe researcher-forensic specialist

divideRelevant, reliable, valid

Relevant

Relates directly to the psychiatric-legal question

and its context

Reliable

Evidence gathered and assessed by different examiners yields consistent

data

Conclusions from accounting for all available evidence should be similar

across scientists

Valid

Opinion should account for all source evidence in order to reflect what it is expected to address

Relevance + Reliable source material

increases Validity

Forensic Behavioral Sciences - Evidence

No requirement to submit interview notesScant, illegible documentation of

interviewsVideotaping still rare and not requiredGerrymandered interviewRating scales as substituteUnregulated self-reportVariable quality and quantity of

investigative scrutiny

Forensic Behavioral Sciences – Transparency?

No mandated diligence or established thresholdNo access to peers for critical reviewNo institutional discipline despite “independence”

Organizations do not discipline if they share the ideology

Organizations do not discipline their leaders

Reduces probative value of well-established disciplineEnables hired gun work and discourages honesty

Forensic Behavioral Sciences – Quality

Access to evidencePromote corroboration through collateral uninvested sourcesHearsay evidence pivotalThe prejudice vs. probative problem of admissibility

DNA?

Forensic Behavioral Sciences – Quality

Telling a jury the who, what, where, when, why increases confidence and awareness of jury

Uninformed jury does not truly know the case they are deliberatingPsychiatric opinion that limits itself to statements of a self-serving litigant

compromises the validity and reliability of the dataPsychiatrists are discouraged from attempting to corroborate the human

evidence they gather, diminishing the potential of psychiatric evidence

Forensic Psychiatry Consultation

The Process

Diligence and source reviewWitness contactInterviewTestingOversight and Accountability ReportTrial preparationTestimony

Diligence and Source Review

Evidence as the evidence dictatesSearching by necessity

Not path or tox – evidence does not come to youChecklist for accountingReconstructing timeline, progression choicesDeath scene, home - internalizeMap priorities for exam – deep drillDepth and internal corroborationEarly start to ensure emergenceSocial media as a necessary personal windowUsing sources to build witness list

Shooting on Beach

Videotape Pathologist

Veterinarian Dog Dentist

Dog Behaviorist

Evidence As the Evidence Dictates

Experts Rely on Experts

Rampage Shooting

Parents Diaries

Computer

Cell phone records

Witnesses

Evidence As the Evidence Dictates

Witness Contact

After source reviewScientific investigative questions differ from

investigators’Proximal physical contact (neighbors)Proximal chronological contact (cell, email, text, FB)Proximal intimacy (best friends, spouses)No one off limits (speak on their terms)

Witness Contact

Context-related inputEvent-related input (previous victims)Identify bad and biased witnessesAdvantages of M.D.Mechanics of mass interviewDrs. talk to Drs. (get releases to send)

Interview

Prepared in advanceSymptom specific and elaborated

Immunizing against prepProbingAccount for local and historical stresses,

eventsAccount for range of motives

Mad, bad, fad, gonad

Interview

Long by designFacilitates intimate discussion

Deliberate sequence of movements, ingestions

Leverage diligence to dateInvest litigant and prompt memory

Interview

Engage inconsistencies Establish what is not being informedCalibrate to yield, diminish resistanceTiming within interviewIdeally, follow up after follow upVideotape

Transparency instead of observers (chaperons)No note-taking and the rapportValue even when silentDisciplines examiner

Testing

Question specific – otherwise, non-specific findingsDictated by source materialsMay also be dictated by interview

Allow for follow upAllows for more inclusive scrutiny

Corrects some examiner blindnessProjective testing not validated and potentially misleadingSelf report of poor validity alone

Testing

MalingeringNative to every criminal caseNot synonymous with accuracy of historyStill obliged to resolve answers

Interpretation by qualified interpreterCross examine on computer program

Testing

Medical testing underutilizedEarly toxPsych = computer forensics

Communication and private ideas paramountNeuroradiology underutilized and misutilized

Sources & Influences of Bias

Conscious bias undetectable in best-trained expertBetter experts are more capable of misleading (professional malingering)

Momentum of the external influence (political, police)MoneyResearchPublicityExaminer confidenceProcess that demands certaintyProcess that rewards argument for the sake of

argumentIdeological passions

Peer Review – The Forensic Panel

Thirteen yearsOversightAccountability of examiners and peer reviewers

Advantages of non-blind peer reviewComplementary expertisePromoting diligence

Input on possibilities, sources, nature of questions, literatureEnforcing adherence to standardsParallels hospital model

Report

Adequately referencedDriven by the nature of the dataAnswer question posedAccount for diagnoses not given, and whyWritten for consumptionAdvocating an opinion, not a sideFootnoted to ensure reflection of general acceptance

Trial preparation

Challenge theories

Use every fact witness to set up opinion and set up cross

eg, absence of psychosis, symptom specific observations of defendant

Lead in questions for each witness

Cross examination questions sequences for each witness

Need science sophistication to cave in multiple experts

Trial preparation

Plug into opposing expert testimony early, for scientific inconsistencies

Report – what isn’t said as important as what is

Must get opposing expert notes

responding to illegibility

Employ critique for psych testing just as one would for chain of custody or other forensic science protocol

Establish norms utilized for neuroradiology interpretation

Testimony

Adequate planning ahead of timeFactual grasp, no notesKnow what needs to resonateDigestible incisivenessEducate about judgeUse of exhibits as need beMining for cross

Engage early – humint fades, witnesses move Aim for The Last Word Promote complementary investigative roles Protect integrity of exam Seize high road for transparency Promote fact over expertise Hold experts accountable for viabilty of science behind

assertions Hold experts accountable for viabilty of evidence behind

assertions Transcend battle of experts Goal – withdrawal of all mental health testimony

Summary

Thank You

Michael Welner, M.D.Chairman, The Forensic Paneldrwelner@forensicpanel.com

917.626.8831