Some judges don’t understand psychologists’ research, while others discount their findings.

By Scott Sleek
Monitor staff

Pedro Gil said he was guilty only of bad aim, not murder.

In a night of youthful defiance in the fall of 1993, Gil heaved a plaster-filled bucket over the wall of a Manhattan rooftop seven stories above the ground, hitting and killing a police officer who stood on the street below. In his criminal trial, Gil claimed he expected the bucket to plummet to the unoccupied sidewalk directly below, instead of continuing forward as it fell and landing in the street where the officer stood.

Cognitive psychologist Michael McCloskey was willing to offer expert testimony that could have backed Gil’s defense. An expert in intuitive physics, the Johns Hopkins University professor contends that people commonly misunderstand physical laws: Studies show that most people mistakenly expect objects thrown from a height to continue moving forward only briefly, and then to fall straight down. In fact, the object will continue moving horizontally throughout its descent, McCloskey says.

But the trial judge never let McCloskey take the stand, claiming intuitive physics was irrelevant to the facts being adjudicated. The jury decided to acquit Gil of second-degree murder, but found him guilty of second-degree manslaughter.

APA has filed an amicus curiae brief with the court considering Gil’s appeal of his conviction. The brief explains why McCloskey’s testimony was both relevant and scientifically sound. (As in all such cases, the association takes no stand on the defendant’s guilt or innocence.)

But many psychologists fear that the trial court’s decision regarding McCloskey is becoming too frequent in American courts. Across the country, judges are increasingly restricting the admissibility of expert testimony, including psychological evidence based on either science or clinical expertise, in cases ranging from personal-injury lawsuits to criminal trials.

Forensic psychologists, along with other legal experts, are concerned that many judges aren’t scientifically savvy enough to assess the validity of an expert witness’ qualifications or integrity.

“One big problem is a misunderstanding of what psychologists do, what they bring to the table,” says Antonio Puente, PhD, a professor at the University of North Carolina–Wilmington and a neuropsychologist. “Judges often have no concepts of what psychology is. So how can they use what we say?”

Many say the increased judicial skepticism reflects a general public backlash against the proliferation of so-called junk science being used as evidence in court. But it also arises from the U.S. Supreme Court contention that judges should have the power to reject expert evidence they see as flimsy or irrelevant.

“We’re starting to see a lot of cases that specify the restrictions that will be placed on psychological evidence,” says David Shapiro, PhD, a Timonium, Md., forensic psychologist. “And the trend is rather disturbing. It looks like admissibility of psychological testimony is going to be extremely narrow.”

But others welcome judges’ scrutiny of expert testimony, counting on it to weed out witnesses who follow sound methodology from those who peddle junk science or unsubstantiated theories.

“Judges are appropriately skeptical,” says Alan Goldstein, PhD, a Hartsdale, N.Y., practitioner and forensic consultant. “That helps the field of forensic psychology. Hopefully it will keep forensic experts honest.”

And other legal experts say concerns about judges’ tightened rein on scientific testimony may be exaggerated. The field of forensic science has mushroomed over the last two decades, and judges may simply have more expert evidence to scrutinize because more of it is being offered in court proceedings, says James McHugh, APA’s general counsel.

“People are thinking of science in ways they never thought of before,” he says.

Heightened demand
Psychology is relatively new to the forensic world. Before the 1970s, psychologists rarely testified as experts in court, mainly because the profession was still trying to establish itself as an accepted science that could be used in forensics.

But in the 1970s, congressional modifications to federal laws that govern the admissibility of evidence allowed psychology and other fields to actively provide expertise in legal proceedings. As a result, demand for forensic experts has skyrocketed in the last 20 years.

But the escalating call for scientific expertise has also raised questions about the qualifications of the professionals that lawyers recruit, and judges allow, to testify. Critics argue that many self-proclaimed experts use the courts as platforms for theories or scientific concepts that they can’t get published in professional journals.

Psychology, in particular, has come under sharp criticism, even among its own practitioners, for peddling bad science as forensic evidence. Psychologists such as David Faust, PhD, and the late Jay Ziskin, PhD, have argued that psychology remains too weak a science to be admissible in many court proceedings. Much of what psychologists and psychiatrists present in court, Faust and others say, is based more on personal experience or impressions than on scientific validation.

And in her book “Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of Criminal Justice” (ReganBooks, 1997), Boston University psychologist Margaret Hagen, PhD, charges that expert psychological testimony is a fraud and should be barred from the courtroom.

Fueling these concerns about competence is the fact that many psychologists are looking for work as forensic experts to replace income lost from the managed-care squeeze on their practices, according to forensic psychologists.

Some lack training to conduct custody evaluations or court-ordered competency examinations, or to offer trial testimony and other common forensic activities, says Goldstein, who also is an associate professor of psychology at John Jay College of Criminal Justice at the City University of New York.

For instance, psychologists who are new to the forensic world may not realize that they need to use assessment instruments that are considerably different from the tools they may use in clinical practice, he says. Forensic assessments must focus on issues such as malingering, he explains.

Judges’ judgment
But at the same time, judges who have exercised tight authority over expert testimony in their courtroom aren’t always selecting the best evidence as admissible, say psychologists who have extensive forensic training. In many cases, the adjudicators are ignoring well-founded evidence while buying into feeble testimony, legal experts say.

For example, family-law judges have denied some divorced mothers custody of their children, based on a “diagnosis” of “parental alienation syndrome,” says Robert Geffner, PhD, a San Diego psychologist and expert on family-violence issues. New Jersey psychiatrist Richard Gardner, MD, coined that term back in 1987 to describe a parent who tries to turn his or her children against the other parent. While psychologists agree that some parents resort to such behavior, parental alienation syndrome is not a valid diagnosis and shouldn’t be admitted into child custody cases, Geffner says.

Sometimes judges and attorneys take on the role of experts, themselves, says Rina Folman, PhD, who practices in Boston and Leominster, Mass., and is chair of the Massachusetts Psychological Association Task Force to Improve Professional Standards. She says she’s seen family-court judges and divorce lawyers engage in pseudodiagnoses, labeling an abused wife, for example, as having borderline personality disorder.

“We as psychologists are supposed to be doing the diagnostic work, and yet what I was finding was that the judges and lawyers were providing the labels and using them as if they were coming from a competent professional,” Folman says.

Some forensic psychologists argue they’ve been improperly lumped into the category of scientific experts, when what they really provide is a broader, specialized knowledge that may include as much clinical expertise as empirical data, if not more so. Using their clinical experience and knowledge, they can present a wider clinical picture that allows the jury to look at extenuating or unique aspects of a case, not just the scientific issues.

But because psychology has held itself up as a field of scientific study, its practitioners may increasingly be held to scientific standards in court—especially in light of recent Supreme Court decisions.

In December, the high court ruled unanimously, in a Georgia man’s personal injury case against General Electric, Westinghouse and Monsanto, that trial judges have wide discretion to decide the type of scientific evidence that can be presented to juries. That ruling clarified the court’s 1993 Daubert v. Merrell Dow Pharmaceuticals decision, which expanded trial judges authority to act as “gatekeepers” of scientific evidence.

(Daubert applied only to federal courts, but many state courts have incorporated it into their own rules of evidence.)

More challenges ahead
Psychologists have already faced several challenges to their testimony under the Daubert ruling and will undoubtedly face more with the recent Supreme Court ruling, legal experts say.

In his own analysis, Donald Bersoff, PhD, JD, director of the law and psychology program at Villanova Law School and the Allegheny University of the Health Sciences, has found 40 cases in which judges ruled on the admissability of psychological testimony under the Daubert decision. He found that some judges admitted testimony dealing with such issues as repressed memory and rape-trauma syndrome, while others threw it out.

But that doesn’t necessarily reflect judicial caprice, says Bersoff, a former member of APA’s Board of Directors. Judges’ decisions on testimony appear to be based largely on the individual expert in question and the facts being litigated, he says. In general, they appear to consistently barr testimony that is based on unvalidated data, or is misapplied to the issues being tried or litigated—such as the use of adult tests to assess a child’s mental state.

“I don’t see why that’s a bad thing,” he adds. “The courts are going to be putting experts’ feet to the fire. But it gives psychology the opportunity to better validate and support our testing and structural assessments.”