Pamela K. Sutherland, a coauthor of Sexual Abuse by Professionals: A Legal Guide (1995), practices in Boston and Tucson, Arizona. Delia J. Henderson works with Ms. Sutherland as a law clerk. © 1998, Pamela K. Sutherland. This article was originally published in TRIAL MAGAZINE. It is reprinted here with the permission of the author.
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Download or view legal brief: Scope of Expert Testimony in Sexual Abuse Cases by Sue Smith (citing Conn. law)
8th Circuit Court of Appeals reverses as "plain error" a trial judge's admission of "psychiatric credibility" testimony from an expert witness. Nichols v. American National Insurance (8th Cir., 9-8-98).
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Susan K. Smith 24 East Main Street Atty. Smith's Hartford Martindale-Hubbell |
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Expert Psychiatrists
and Comments on
Witness Credibility
Pamela K. Sutherland
and Delia J. Henderson
Defense counsel: Doctor, can someone with borderline personality disorder and all the other psychological problems that the plaintiff has be capable of constructing a detailed narrative that reflects distortion of the truth but is a consistent narrative over a long period of time?
Psychiatrist: Yes. Borderlines have a tendency to distort reality and to be unable to distinguish fact from fiction-and to appear on the surface to be high-functioning individuals.
Defense counsel: Doctor, the plaintiff's medical records are replete with documentation of the plaintiff's problems with alcohol. In your opinion, are people who carry the diagnosis of alcoholism basically truthful people?
Psychiatrist: No, you cannot rely on alcoholics to tell the truth.
The rise of psychology and psychiatry as sciences in the courtroom has contributed to the enhanced abilities of participants to cast aspersions on each other-and impermissibly prejudice the jury. In 1989, it was estimated that mental health clinicians were participating in about a million cases each year, with "significant impact on judges and juries."1
Courts have become increasingly sensitive to psychiatric experts who, through their diagnoses, explicitly or impliedly comment on the credibility of witnesses. In sexual abuse cases especially, courts are finding that "there appears to be particular risk of undue influence when an expert's testimony can be construed as impliedly supporting the truthfulness of a victim."2
Expert psychotherapists' linking of a child's symptoms to diagnoses such as child sex abuse accommodation syndrome draws reversible error.3 The rationale for holding this testimony to be reversible error is that it "usurps the jury's traditional functions" by providing powerful commentary-coming from an esteemed mental health professional and "expert"-on witness credibility.4
However, statements from the same psychiatric experts testifying for the defense, as cited above, that link negative diagnoses with a witness's specific condition have generally gone unchallenged in recorded decisions.5 Expert witnesses testifying to what in any other context would be actionable defamation are "absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding . . . in which the expert is testifying, if it has some relation to the proceeding."6
Thus, psychiatrists may engage with impunity in ad hominem attacks against plaintiffs who, for example, accuse them of sexual misconduct, labeling them "sexually frustrated," suffering from "erotomania," and having borderline personality disorder.7Policies that prohibit positive commentary on credibility, or "bolstering," should also apply to negative commentary on witnesses' credibility in the form of pejorative and false diagnoses.
Commenting on witnesses' credibility has long been forbidden in the courtroom. Under Federal Rule of Evidence 702, experts' testimony is admissible to the extent that their opinions and testimony ("scientific, technical, or other specialized knowledge") will "assist" the jury in understanding issues of fact beyond the jury's common experience. Assessment of witness credibility is within the jury's common experience; therefore, on that basis alone, expert testimony is inadmissible.8
Witness credibility may also be viewed as an "ultimate issue" in the pending litigation.9 Although Federal Rule of Evidence 704(a) relaxes the historical prohibition on expert testimony on ultimate issues, Federal Rule of Evidence 704(b) specifically prohibits experts in criminal cases from "stat[ing] 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." (It should be noted that unless otherwise specified, the Federal Rules of Evidence apply to both civil and criminal proceedings.)
Sexual abuse, misconduct, and harassment cases where there is commentary on credibility pose even more problems. One court said, "As is often the case where there are charges of rape or sexual assault, the question of guilt or innocence rests in large part 'upon whether the jury believed the victim's version of what happened or the defendant[s'].'"10
Moreover, expert testimony on credibility may unduly influence the jury's own decision-making abilities. As one court eloquently phrased it,
At first blush it may seem illogical to permit a jury to draw inferences from certain facts while forbidding an expert to testify to the inference. Surely the expert is more qualified than a jury to analyze the facts and make appropriate conclusions. The problem is that most lay people, including the jury, are likely to feel the same way-that the expert is better qualified to draw the inference-and therefore defer to the expert. The law should guard against such deference unless there is a substantial basis for it.11
Psychotherapists, who purport to know the workings of the human psyche, pose an even greater risk than other experts of jeopardizing the independent decision-making functions of the jury when they comment on witness credibility. However, as one court noted, "It has not been demonstrated that the art of psychiatry has yet developed into a science so exact as to warrant such a basic intrusion into the jury process."12
Another court found reversible error in the admission of the treating therapist/expert's testimony describing the abuse and repeating the name the victim/patient gave for the perpetrator. The court stated, "Our principal concern is that the psychological expert not be perceived by the jury as a 'truth detector'-someone who, by application of scientific method, determines whether the victim is telling the truth about whether the abuse occurred and the abuser's identity."13
Courts routinely hold that because sex abuse cases present an enhanced danger of improperly influencing the jury, expert testimony is excluded if
- it contains the opinion that the victim's "behavior was entirely consistent with the child who had been sexually abused,"14
- the expert saw no indicators of deception and "no attempt on [the victim's] part to change things around, say things differently than the way she felt,"15 or
- the expert believed the child had been sexually abused by the defendant because "'she had never been through anything else that would cause any signs of emotional disturbance or upset other than this victimization.'"16
Courts find that this testimony constitutes impermissible "bolstering" of the witness by the expert.17
However, most jurisdictions allow expert testimony about psychiatric syndromes associated with abuse. Testimony about rape trauma syndrome,18 battered woman syndrome,19 or child sex abuse accommodation syndrome 20 is usually found admissible. The few courts that have balked at admitting this testimony have voiced concern that when linked with the specific witness's own characteristics, the psychiatric syndrome evidence "'could be construed as impliedly supporting the truthfulness of [the witness].'"21
In Commonwealth v. Rather, the court found it was reversible error for the expert psychologist to testify about the "pattern of disclosure of child sexual abuse victims."22 The rationale was that, given the circumstances in the case, "the jury could reasonably have concluded that the [expert] witness had implicitly rendered an opinion as to the general truthfulness of the victims."23 The court cited as support a prior holding that
while the proposed testimony fell short of rendering an opinion on the credibility of the . . . [victims] before the court, we see little difference in the final result. It would be unrealistic to allow this type of . . . testimony and then expect the jurors to ignore it when evaluating the credibility of the complaining [witness]."24
On the other hand, expert testimony that negatively reflects on a witness's credibility-either syndrome evidence or evidence specifically linking characteristics to the witness-generally is admissible. In Commonwealth v. Stockwell, the supreme judicial court rejected arguments that the prosecution's expert had impermissibly maligned the defendant's credibility.25
The defendant was ultimately convicted of strangling his pregnant companion. He claimed he suffered from a mental impairment and therefore lacked the requisite criminal responsibility. The psychiatrist for the prosecution testified that "the defendant had an impulse control disorder, . . . that the defendant's problems exhibited an antisocial orientation, and . . . that the defendant's disorder did not constitute a mental disease or defect."26
In elaborating on what was meant by an "antisocial orientation," the expert referenced, for example, "bank robbers and career criminals."27 The court found that, "[the psychiatrist's] references in his testimony to bank robbers and career criminals to explain general psychiatric concepts involved in his diagnosis of the defendant did not amount to improper 'bad character' evidence as the defendant contends."28
Similarly, in Henson v. State, the Indiana Supreme Court held that "[f]undamental fairness" required that the defense be allowed to present rape trauma syndrome evidence to show that the victim's behavior was inconsistent with that of a rape victim.29
But there is a more subtle point: Certain psychiatric diagnoses constitute per se commentary on a witness's credibility. Name calling disguised as psychiatric diagnoses is older than Bedlam. Phyllis Chesler in her 1986 book, Mothers on Trial, noted, "Fathers' lawyers always routinely and falsely accused mothers of 'sexual promiscuity' or 'mental illness.' Mothers' lawyers believed or became 'worried' about such accusations."30
Another commentator has stated, "Most allegations by female patients of sexual seduction by male therapists are discounted. The complaints are ascribed to a sexually frustrated woman attempting to get revenge on a rejecting man, and the psychiatric patient complaining about her therapist has the additional stigma of the label 'mental patient.'"31
Within the already negative grouping of "mental patients" exists a hierarchy of sorts of mental illnesses. At the bottom are persons suffering from borderline personality disorder. Judith Herman comments that this diagnosis is "frequently used within the mental health professions as little more than a sophisticated insult."32 "Borderlines," as they are called, are considered within the profession to be exceptionally difficult to treat, and "therapists who treat patients with borderline personality disorder appear to be sued most frequently for suicide and sexual misconduct."33
The hallmarks of borderline personality disorder are "frantic efforts to avoid real or imagined abandonment"; unstable personal relationships; unstable self-image; unstable emotions; transient, stress-related paranoia; and little control over impulses.34 An example of and perhaps the best-known fictional character with this disorder is Alex Forrest, played by Glenn Close, in the movie Fatal Attraction.35
Typically, in sexual misconduct suits, defendants seek to portray the plaintiff as Alex Forrest. "A woman scorned," "irrational," "incapable of cogent thought process," and "out of touch with reality" are common descriptors of the "borderline plaintiff" used by psychiatric experts testifying for the defense.
The clever phrasing of the psychiatrist first quoted in this article, that "borderlines have a tendency to distort reality, and to be unable to distinguish fact from fiction-and to appear on the surface to be high-functioning individuals"-allowed the negative commentary about the witness to be merged with the defendant's need for expert opinion to help the jury see how uncredible the witness truly is. But isn't this simply a more sophisticated way of calling the plaintiff a liar?
Other psychiatric diagnoses are similarly damaging. For example, alcoholism, as defined by the expert quoted above, causes a person to be incapable of telling the truth, and "malingering" means lying-"the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by . . . avoiding work, obtaining financial compensation [or other motivations]."36
Another similar psychiatric disorder is Munchausen syndrome, also known as a factitious disorder with physical symptoms, in which the patient intentionally produces "or feign[s] . . . physical symptoms with a psychological need to assume the sick role."37
Should all psychiatric diagnoses be forbidden in courtrooms? Some commentators have argued that all psychiatric testimony is inherently unreliable. This topic is now hotly contested within the context of Daubert hearings about the admissibility of expert testimony.38
The distinction has been made between "hard" sciences, such as DNA testing, and "soft" sciences, such as "psychology, economics, sociology, psychiatry, and political science," that attempt to objectify human behavior.39 "One scholar has argued that the policy justifications for using a stricter admissibility test to evaluate scientific testimony should not apply to psychological testimony. He argues that 'the jury most likely has the ability to fairly and intelligently weigh the strengths and weaknesses of psychological evidence without being overwhelmed or overawed by it.'"40
Nonetheless, juries are influenced by expert psychiatric opinions about witnesses. Courts have been focused on the deleterious effects of experts' positive commentary or bolstering of witnesses through their testimony about syndromes or diagnoses. Certainly challenging negative commentary by expert psychiatric witnesses is also fair game.
When faced with the defendant's psychiatric commentary on witness credibility, plaintiff counsel can do the following:
- File a motion in limine to prevent the defendant's experts from testifying to their opinions about witnesses' credibility.
- It may be strategically advantageous to file this motion before presenting the plaintiff's experts if the court denies the motion and allows the defendant's experts to testify. The plaintiff may then wish to elicit testimony similar in credibility commentary to the defendant's.
- For example, the plaintiff's experts in a therapist-patient sexual misconduct suit may want to use the term coined by Kenneth Pope, "therapist-patient sex syndrome," to define the panoply of symptoms generally experienced by victims of sexual abuse by a therapist.41
- Challenge under the principles established in Daubert 42 the scientific underpinnings of the expert's ability to testify about his or her diagnosis of the witness and its relevance to the jury's assessment of the witness's credibility.
- Request, if the expert has not been deposed, voir dire of the expert outside the jury's presence if counsel has a good faith basis to believe inadmissible testimony will be elicited.
- Challenge-in cross-examination-the expert's assumptions about the predicate event leading to the plaintiff's condition. Psychiatric diagnoses are based on symptom lists contained in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV). Most symptoms fall under multiple diagnoses.
For example, almost all the symptoms of borderline personality disorder (BPD) (DSM-IV §301.83) and post-traumatic stress disorder (PTSD) (DSM-IV §309.81) are the same with the exception of the predicating event. For BPD, the predicating event is an underlying personality disorder beginning in early adulthood; for PTSD, the predicating event is the exposure to a traumatic event.
Thus, the BPD diagnosis assumes that the witness has had a personality disorder since early adulthood (and therefore damages arguably are mitigated as well), and the PTSD diagnosis assumes that the trauma actually occurred.
Assuming that the plaintiff does not have a personality disorder, for example, the plaintiff's symptoms are consistent with the alternate diagnosis of PTSD. Emphasize that the expert did not examine the plaintiff years ago in young adulthood and was not present at the traumatic event.
Mental health professionals blame the court system for pushing them "beyond the limit of general acceptance" to formulate answers to "ultimate legal question[s] (e.g., whether the defendant is criminally responsible) . . . [which] never correspond to clinical diagnoses or any specific psychological functions."43 Psychiatrists Steven Hoge and Thomas Grisso frankly state, "The answers to these legal questions represent society's contextual appraisals in specific instances; these judgments are bounded by notions of morality, justice, and social policy."44
These old-fashioned values that our jury system embodies should remain free from bolstering by psychiatric experts. The policies that prohibit positive commentary on credibility or "bolstering" should also apply to negative commentary on witnesses' credibility in the form of pejorative and false diagnoses.
1. Steven R. Smith, Mental Health Expert Witnesses: Of Science and Crystal Balls, 7 BEHAV. SCI. & L. 145, 146 (1989).
2. Commonwealth v. McCaffrey, 633 N.E.2d 1062, 1067 (Mass. App. Ct. 1994) (citations omitted).
3. See, e.g., Commonwealth v. LaCaprucia, 671 N.E.2d 984 (Mass. App. Ct.), review denied, 674 N.E.2d 674 (Mass. 1996).
4. Id. at 988.
5. See, e.g., Henson v. State, 535 N.E.2d 1189, 1193 (Ind. 1989); Commonwealth v. Stockwell, 686 N.E.2d 426, 429 (Mass. 1997).
6. RESTATEMENT (SECOND) OF TORTS §588 (1977).
7. STEVEN B. BISBING, LINDA M. JORGENSON & PAMELA K. SUTHERLAND, SEXUAL ABUSE BY PROFESSIONALS: A LEGAL GUIDE 797-98 (1995).
8. See, e.g., Scott v. Sears Roebuck & Co., 789 F.2d 1052 (4th Cir. 1986) (inappropriate to admit expert opinion when it relates to matters that are obviously within the common knowledge of jurors).
9. See, e.g., PAUL J. LIACOS, HANDBOOK OF MASSACHUSETTS EVIDENCE §7.3 (6th ed. 1994 & Supp. 1998).
10. Commonwealth v. Mendrala, 480 N.E.2d 1039, 1041 (Mass. App. Ct. 1985).
11. State v. Alberico, 861 P.2d 219, 224-25 (N.M. Ct. App. 1991).
12. State v. Milbradt, 756 P.2d 620, 624 n.3 (Or. 1988) (quotation omitted).
13. State v. Wetherbee, 594 A.2d 390, 393 (Vt. 1991).
14. State v. Roderigues, 656 A.2d 192, 195 (R.I. 1995).
15. Milbradt, 756 P.2d 620, 623.
16. State v. Gokey, 574 A.2d 766, 772 (Vt. 1990) (emphasis added).
17. Id.
18. Karla Fischer, Note, Defining the Boundaries of Admissible Expert Psychological Testimony on Rape Trauma Syndrome, 1989 U. ILL. L. REV. 691, 692.
19. Joan M. Schroeder, Note, Using Battered Woman Syndrome Evidence in the Prosecution of a Batterer, 76 IOWA L. REV. 553, 554 (1991).
20. See Karla Ogrodnik Boresi, Comment, Syndrome Testimony in Child Abuse Prosecutions: The Wave of the Future? 8 ST. LOUIS U. PUB. L. REV. 207 (1989).
21. McCaffrey, 633 N.E.2d 1062, 1067.
22. 638 N.E.2d 915, 919 (Mass. App. Ct. 1994).
23. Id. at 920.
24. Id.
25. 686 N.E.2d 426.
26. Id. at 429.
27. Id. at 430.
28. Id.
29. 535 N.E.2d 1189, 1193.
30. PHYLLIS CHESLER, MOTHERS ON TRIAL (1986).
31. JONAS ROBITSHER, THE POWERS OF PSYCHIATRY 420 (1980) (quoted in BISBING, JORGENSON & SUTHERLAND, supra note 7).
32. JUDITH LEWIS HERMAN, TRAUMA AND RECOVERY 123 (1992).
33. ROBERT I. SIMON, CLINICAL PSYCHIATRY AND THE LAW 389 (2d ed. 1992).
34. AMERICAN PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 654 (4th ed. 1994) [hereafter DSM-IV].
35. Clinical Tools, Inc., Borderline Personality Disorder (visited Apr. 25, 1998) http://www.healthguide.com/personality/borderline.htm.
36. DSM-IV, supra note 34, at 683.
37. Jeffrey S. Janofsky, The Munchausen Syndrome in Civil Forensic Psychiatry, 22 BULL. AM. ACAD. PSYCHIATRY & L. 489 (1994).
38. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
39. Confronting the New Challenges of Scientific Evidence, 108 HARV. L. REV. 1481, 1524 n.271 (1995).
40. Id. at 1526 (citing David McCord, Syndromes, Profiles & Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 OR. L. REV. 19, 86 (1987)).
41. , SEXUAL INVOLVEMENT WITH THERAPISTS 117-56 (1994).
42. 509 U.S. 579.
43. Steven K. Hoge & Thomas Grisso, Accuracy and Expert Testimony, 20 BULL. AM. ACAD. PSYCHIATRY & L. 67, 71 (1992).
44. Id.
