I believe the courtroom is a unique place with special rules that must be understood in order for the most effective presentation of the technical data to occur. The process is adversarial, which is generally contrary to the experience of academicians or people who practice a profession but do not testify as a forensic expert. Clinicians, for example, are used to being trusted and believed without having to explain in detail the basis for their opinions. The courtroom is different; there must be a sound scientific basis for the expression of an opinion (the Daubert or Kelly-Fry cases, for example) and most clinicians are not used to having to defend their opinions in this fashion. On cross-examination, the Expert Witness’ assumptions, misunderstanding of the facts or even bias may be revealed. A good Expert Witness is fully prepared to explain and defend their opinion under cross-examination as well as direct examination and knows the legal limitations of his or her testimony.
I often am asked whether or not I am a “world authority” on this topic or on that which is being litigated. Said another way, have I produced definitive research on a particular topic or is there a research I have performed on some of the definitive research on the topic? The presumption is that the academic expert is the best expert for a forensic case, a conclusion I would not come to, based upon my experience. Academic experts are not experts about the process of forensic psychiatry and do not understand the duties and obligations placed upon them by the courts and by the whole adversarial process. Giving testimony and knowing how it is received and understood is different from research. Academicians may be good researchers but terrible teachers. It is necessary to be a very good teacher in order to be able to teach a jury about a highly complex subject in easily understood terms.
A few academicians have this skill; without a doubt. Richard Feynman’s CalTech lectures on fundamental physics, which he gave only once in the 1950s, are classic examples of simplicity and explanation on a highly complex and abstract subject. It is perhaps not surprising that when he gave this series of lectures to first-year undergraduates, the entire physics faculty audited his lectures. Fortunately, the lectures were recorded and transcribed.
The forensic expert must be qualified and very familiar with the literature in the field about which he is going to express that opinion in addition to having extensive clinical experience in the field. During more than 30 years, I not only have been a forensic psychiatrist but also a clinical psychiatrist spending about half of my time in clinical practice. The practice of forensic psychiatry has taken me into clinical medicine, not just psychiatry, and I have performed many clinical evaluations in a forensic setting, which first and foremost required an accurate diagnosis. Having performed 5000 or more evaluations means I have performed 5000 or more clinical psychiatric examinations, in which I was prepared to defend my opinions based on scientific knowledge and my clinical experience and training. More than most psychiatrists, my assessments have been scrutinized by my peers. I have learned from them, as have other forensic experts.
Ultimately, I believe forensic psychiatrists and other forensic experts must approach the cases on which they are called as impartial evaluators. The outcome of a case is not my business; I do not win or lose cases. What I am prepared to do, and I believe my forensic peers are also, is to reach an impartial opinion about a person and then defend that opinion within an adversarial context. My advocacy of the opinion, however, is not my advocacy of the person. If new information is provided to me that changes the weight of the medical evidence in such a way as to change my opinion, I will do so, and from time to time this has been the case.
Sometimes the changed opinion is favorable to the side that retained me and sometimes it is not. It has been my experience that a change to my opinion is not always absolute but only incremental, to the slightly geater advantage of the “opposing” party, for example, in terms of need for treatment, but not regarding other issues. Objectivity is an Expert Witness‘ stock-in-trade and must be unimpeachable to be useful. I believe that in court my—and any Expert Witness‘—reputation for objectivity is more valuable than the expert who is known to be “a sure thing”.
An expert is most efficient when well-versed in the process of litigation. The litigated case is governed by special rules of procedure and method. A medical expert who understands the rules works more advantageously than the medical expert who does not. It is the same in any arena.