Crossfire : how to survive giving expert evidence as a psychologist

100 Pages·2008·1.782 MB·English

by  Bruce A. Stevens

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As psychologists, we are highly trained mental health professionals.
In the consulting room we are generally ‘in control’ and have a good
feel for what is happening. However, in a court of law, it can be
quite frightening as anything can happen. The vulnerability we feel
in a courtroom is a professional vulnerability. This is because a
psychologist can be made to think that his or her competence is on
the line. This is not usually the case, but it is what it feels like. It is
important for us to realise that in court it is our opinion that matters.
But the process feels personal.
This book is written to help you develop understanding and skills
so that you can feel confident in presenting expert evidence. The
format of the book is not simply to give you information, instead
it is also structured to reflect the way psychologists can develop
professional competence through supervision. You, the reader,
will listen in on supervision sessions with Jason and Mary. The book
includes practical suggestions and a focus on skills, as well as
structured exercises to practise with peers. While it is not intended
to be comprehensive, Crossfire’sapproach will touch on many of
the issues that are important in the legal process. Its particular focus
is enabling psychologists in Australia to feel confident in court.
Author Bruce Stevens has been working in the field of
forensic psychology since 1993, and has provided evidence
in court over 300 times. In 1995 he founded the Canberra
Clinical and Forensic Psychology practice, and he has
supervised over 50 psychologists in training. He has lectured
at both the University of Canberra and Australian National
University. Bruce currently holds both research and teaching
positions at Charles Sturt University and is a member of the
College of Forensic Psychologists and the College of Clinical
Psychologists of the Australian Psychological Society.
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Bruce A. Stevens
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First published in 2008 from a completed manuscript presented to
Australian Academic Press
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National Library of Australia
Cataloguing-in-Publication data:
Stevens, Bruce A., 1950-
Crossfire: how to survive giving expert evidence as a
psychologist / Bruce A. Stevens.
ebook ISBN 9781921513169
Evidence, Expert—Australia.
Forensic psychology—Australia.
614.10994
Editing and typesetting by Australian Academic Press, Brisbane
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C O N T E N T S
Chapter 1 Introduction 1
Chapter 2 Jason is Forced to Attend Court 3
Chapter 3 Jason in Supervision 7
Chapter 4 Mary as an Expert Witness: 19
Supervision Session 1
Chapter 5 Mary in Court 33
Chapter 6 Mary in Supervision: Session 2 39
Chapter 7 Different Barristers, Same Tricks 45
Chapter 8 A Judgment: Understanding the 53
Legal View of Expert Evidence
Chapter 9 A Complaint is Made Against Mary 63
Chapter 10 Towards Excellence 69
Appendix 1 A Practice Report for Peer Supervision 75
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1
C H A P T E R O N E
Introduction
A
s psychologists, we are highly trained mental health
professionals. In the consulting room we are generally ‘in
control’ and have a good feel for what is happening. However,
in a court of law, it can be quite frightening as anything can happen.
The vulnerability we feel in a courtroom is a professional
vulnerability. This is because a psychologist will tend to think that his
or her competence is on the line. This is not usually the case, but that
is what it feels like. It is important for us to realise that in court it is our
opinion that matters. But the process feels personal.
This book is written to help you develop understanding and
skills so that you can feel confident in presenting expert evidence.
The format of the book is not simply to give you information;
rather I have structured it to reflect the way psychologists develop
professional competence through supervision. You, the reader, will
listen in on supervision sessions with Jason and Mary. The book
includes practical suggestions and a focus on skills, as well as
structured exercises to practise with peers. While it is not intended
to be comprehensive, Crossfire’s approach will touch on many of
the issues that are important in the legal process. Its particular
focus is enabling psychologists in Australia to feel confident during
cross-examination.
1
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C H A P T E R T W O
Jason is Forced
to Attend Court
J
ason qualified as a professional psychologist by completing his
fourth year in psychology, followed by a further 3 years working
in the public mental health field. He then entered private
practice,quickly building a solid list of counselling clients.
One of his clients is Rebecca, a 36-year-old single mother, who
stopped working for a security company after experiencing sexual
harassment. This led to a disputed worker’s compensation claim. After
about 15 sessions of counselling with Jason, Rebecca’s employer had
their insurer write to Jason asking for a treatment report. Jason wrote
a brief report that included a tentative diagnosis of reactive
depression. He then billed the insurance company at the hourly fee
rate as recommended by the Australian Psychological Society and
thought little more about it. Jason believed what his client had told
him, namely that she has a rightful claim for compensation and the
insurance company should pay up.
A couple of months later, while still treating Rebecca, Jason
received a subpoena for his treatment notes. He found this highly
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CROSSFIRE
intrusive, fumed about the loss of confidentiality, and even thought
briefly about destroying the notes. Instead, he wisely rang Rebecca’s
lawyer, who advised him to comply with the subpoena by sending a
photocopy of all correspondence and the contents of his file. Rebecca
talked to Jason about the impending court case and eventually he was
served with another subpoena to attend court.
Jason went to court, as instructed in the subpoena, and waited three
hours to be called in to give evidence. This was his first time in court
and he found it all very disorienting. He wasn’t sure where to go and
had to ask the court attendant for directions. The court attendant merely
nodded towards a box to the left of a higher desk where the magistrate
sat. Jason was sworn in, preferring to take the oath.
The first barrister Ms Green, representing Rebecca, seemed
friendly enough. She asked questions about the problems Rebecca
had encountered when she first began work. She then asked about
symptoms of depression and Jason felt on a ‘bit of a roll’ thinking to
himself, ‘This court stuff is easier than I thought’.
The other barrister, Mr Black, represented the insurance company.
He did not seem at all friendly and instead was quite aggressive and
contemptuous in his questioning. The first question was more of a
statement: ‘I gather that you are not a qualified medical practitioner?’
Jason answered that he was a registered psychologist, but he felt
defensive. He felt even more on the spot when Mr Black asked him
if he had read the Code of Conduct for Expert Witnesses. Jason had to
admit that it was his first time in court and he did not even know
about the existence of such a code. Mr Black instructed him about his
duty to serve the court in an impartial way, and implied that it was
not the same as being an advocate for his client.
There were difficulties when Mr Black reviewed Rebecca’s work
history: ‘Were you aware that she was dismissed from two previous
places of employment?’. This was news to Jason, but worse was to
come. She had two charges for DUI (driving under the influence of
alcohol) and a history of other driving offences. Jason knew that she
was a daily user of cannabis and occasionally used ecstasy when
clubbing. He was astonished when Mr Black said that Rebecca had
worked in the sex industry for nearly 2 years in her early twenties.
Mr Black then turned to the diagnosis of reactive depression. He
said, ‘I would like you to consider whether this diagnosis indicates the
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JASON IS FORCED TO ATTEND COURT
whole picture’. He then took Jason through all the criteria of
borderline personality disorder from DSM-IV:
This is characterised by five or more of:
(cid:129) frantic efforts to avoid real or imagined abandonment
(cid:129) unstable and intense interpersonal relationships
(cid:129) identity disturbance
(cid:129) impulsivity in two areas that are potentially self-damaging (e.g.,
spending, sex, substance abuse, reckless driving, binge eating)
(cid:129) recurrent suicidal behaviour, threats, self-mutilation
(cid:129) affective instability with marked changes in mood
(cid:129) chronic feelings of emptiness
(cid:129) inappropriate intense anger and difficulty controlling it
(cid:129) transient paranoid ideation or severe dissociative symptoms.
Jason knew that Rebecca had some features of personality disorder, but
he had thought that her main problem was depression after what she
experienced at work. He was soon led to admit that Rebecca did cling
in romantic relationships and went to almost any length to avoid being
alone. In his notes he had quoted her as saying, ‘I feel empty a lot of
the time’. She was impulsive with spending and she often had ‘one
night stands’. Jason had warned her to be more careful in terms of her
sexual safety. Rebecca had attempted suicide when she was 16 and he
included that in his report to support the diagnosis of depression.
Jason also had to concede that Rebecca was ‘up and down’ in her
moods. She was a demanding client, with frequent phone calls
between sessions. When he was unavailable to see her for a week,
she became enraged and it took 40 minutes of the next session to
calm her down. The only symptoms Jason did not support were
identity disturbance and transient paranoid ideation. Mr Black
continued, ‘Would you agree that your client meets seven of the
DSM-IV criteria?’ Reluctantly Jason said ‘Yes’. The barrister then
added, ‘Then we can conclude that she has borderline personality
disorder’. This was more of a statement than a question, and Jason’s
silence was his assent. Mr Black continued, ‘I will not ask why you
did not make this diagnosis, which of course was made by Dr
Lavender (the expert employed by the insurance company). It is
clear that he did a more thorough job in his assessment’. He
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