Forensic psychology is the psychological application of scientific solutions to resolve legal issues. Properly using a forensic psychologist in your legal practice may help you win your case or prove a fact relevant to successful completion of the case.
A psychologist is a non-medical doctor practitioner trained in the diagnosis and non-medical treatment of mental disorders. Psychologists are uniquely trained in the use and administration of psychological tests in the measurement of behavior as part of a psychological evaluation.
Forensic psychology is defined as the application of the science and profession of psychology to the questions and issues relating to the law and the legal system. A forensic psychologist can be an expert witness at trial to inform the judge and the jury or as a trial consultant who can help you advocate for your position. A forensic psychologist can assist in jury selections to determine what type of juror is best for your case and which to avoid. They can help in the designing of voir dire questionnaires and noticing biases in potential jurors. Forensic psychologists are also trained in recognizing false confessions and people faking of mental illness or symptoms for insanity pleas.
The standards for admissibility of forensic psychologist related evidence varies from state to state and amongst jurisdictions. Most jurisdictions have some form or modification of CA Rule 702, which states:
(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.
(b) A witness’ special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.
Additionally, California courts will apply the Kelly-Frye “General Acceptance” Test which states that California trial judges are the “gatekeepers” for determining whether expert opinion testimony is admissible. Such expert testimony should be reviewed by the trial court initially for purposes of determining the foundation and ensuring that the materials used by the expert in expressing their opinion are of the type reasonably relied upon by experts in the field.
At the Federal Level, the Daubert Test is applied which is a checklist the judge is required to go through to evaluate whether the expert’s technique has been challenged or accepted. There are four factors: (1) Testing; (2) Peer review; (3) Error rates; and (4) “Acceptibility” in the relevant scientific community. The Daubert “gatekeeping” obligation applies not only to scientific testimony but to all expert testimony while CA Rule 702 does not distinguish between “scientific” knowledge and “technical” or “other specialized” knowledge – Rule 702 makes it clear that any such knowledge might become the subject of expert testimony.
Selecting the best expert for your case
All experts are not created equal, buyer beware! You must do your homework when selecting a forensic psychologist as your expert. You should always check with the State Licensing Board to ensure your expert is properly licensed. You would be surprised how many experts do not maintain their license(s) or are not properly licensed in the jurisdiction. You should also check for any current or pending legal actions against the expert. There can be no lawsuits against your expert or that will come out on the stand and destroy their credibility in front of the judge and jury. Check for any ethical complaints, current or pending, against their license – this will definitely hurt your case at trial. Ask yourself, does the expert have the proper education, skills and expertise to help your case? Generally, you should check for a doctoral degree, a license and board certification before hiring the expert. The American Board of Professional Psychologists will have documented formal education and training in Forensic Psychology requiring a comprehensive written exam, a 3-hour oral exam and submission of complete evaluations with reports.
Beware of the “Hired Gun” – the expert who says “Regardless of the facts, I will give the opinion you need.” This expert will be willing to ignore scientific evidence and will say whatever they are paid to say. Juries and opposing counsel will see right through this, sniff it out and the cross examination will damage your expert’s reputation and destroy their credibility on the stand and your case is done.
A forensic evaluation may be made in a clinical interview, through psychological testing and with collateral contacts and records. A clinical interview is a comprehensive interview to determine whether the person may meet the criteria to be diagnosed with a mental health issue. The questions asked include inquiries into their education, training, background, medical history, marriage or marital history, etc.
Psychological testing can take 1-2 days to complete. These tests are objective and made relevant to the case or specific issue. There are three types of tests: psychological, cognitive and specialized forensic tests. The results of these tests help the forensic psychologist to determine whether the person can be diagnosed with a mental health issue or disorder or whether they are trying to fake it.
You should never rely solely on the evidence given by the client, you must provide collaborative information or data from a third party source or a collateral contact. Collateral contacts can be personal contacts like spouses/partners, roommates, family members and employers/supervisors/colleagues; professional contacts or sources like police officers, jail staff, doctors/nurses, social workers and teachers; documentation and records like police reports, crime scene evidence, jail records, school records, employment records, medical records, financial records and military records.
Trial consultations can focus on a number of preparations: a mock trial, witness preparation, organizing the presentation of the evidence at trial, jury selection, preparing cross-examination materials, the strength and weaknesses of your case and opposing counsel’s case or expert. Additionally, a forensic evaluation can determine whether the person on the stand is telling the truth and/or whether they appear sicker or not as sick as they actually are. This practice is called malingering, the deliberate or gross exaggeration of symptoms for external gain. Expert’s are trained in detecting these people and many will use rare or improbable symptoms or symptom combinations which don’t generally occur in people with the same or similar illness(es).
Hiring a good forensic psychologist as an expert can really help you prepare and execute a successful case. They will make a strong appeal for their opinions confidently and without advocating for your client, only advocating for the opinion. They show that they are not interested in the outcome of the case, only the facts and the truth. A good expert will identify and explain rival opinions without becoming defensive. The answer to the question, “Isn’t it true there is another opinion on this?” is “Yes, let me explain why…” Lastly, the expert will discount rival opinions explaining the reasons why theirs the more credible opinion.
Has your practice relied on expert testimony from a forensic psychologist in the past? How important was that testimony for your case?
How To Earn CLE Credit on this Topic
For an in-depth review on this topic, Attorney Credits offers a course titled “Using A Forensic Psychologist in Your Legal Practice”
The course is available for CLE credit in the following states: Alaska (AK) | Arizona (AZ) | California (CA) | Colorado (CO) | Connecticut (CT) | District of Columbia (DC) | Florida (FL) | Georgia (GA) | Maryland (MD) | Massachusetts (MA) | Michigan (MI) | New Jersey (NJ) | New York (NY) | South Dakota (SD)