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Reference Guide on Mental
Health Evidence
PAUL S. APPELBAUM
Paul S. Appelbaum, M.D., is the Elizabeth K. Dollard Professor of Psychiatry, Medicine,
and Law, and Director, Division of Law, Ethics, and Psychiatry, Department of Psychiatry,
Columbia University and New York State Psychiatric Institute.
ConTenTs
I. Overview of Mental Health Evidence, 815
A. Range of Legal Cases in Which Mental Health Issues Arise, 815
1. Retrospective, contemporaneous, and prospective assessments, 817
2. Diagnosis versus functional impairment, 819
B. Mental Health Experts, 821
1. Psychiatrists, 821
2. Psychologists, 824
3. Other mental health professionals, 826
C. Diagnosis of Mental Disorders, 828
1. Nomenclature and typology—DSM-IV-TR and DSM-5, 828
2. Major diagnostic categories, 831
3. Approaches to diagnosis, 834
4. Accuracy of diagnosis of mental disorders, 839
5. Detection of malingering, 839
D. Functional Impairment Due to Mental Disorders, 841
1. Impact of mental disorders on functional capacities, 841
2. Assessment of functional impairment, 842
E. Predictive Assessments, 846
1. Prediction of violence risk, 846
2. Predictions of future functional impairment, 851
F. Treatment of Mental Disorders, 852
1. Treatment with medication, 853
2. Psychological treatments, 858
3. Treatment of functional impairments, 860
4. Electroconvulsive and other brain stimulation therapies, 861
5. Psychosurgery, 863
6. Prediction of responses to treatment, 863
G. Limitations of Mental Health Evidence, 865
1. Limits of psychodynamic theory, 865
2. Ultimate issue testimony, 867
813
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II. Evaluating Evidence from Mental Health Experts, 869
A. What Are the Qualifications of the Expert? 869
1. Training, 870
2. Experience, 871
3. Licensure and board certification, 873
4. Prior relationship with the subject of the evaluation, 875
B. How Was the Assessment Conducted? 877
1. Was the evaluee examined in person? 877
2. Did the evaluee cooperate with the assessment? 879
3. Was the evaluation conducted in adequate circumstances? 880
4. Were the appropriate records reviewed? 881
5. Was information gathered from collateral informants? 882
6. Were medical diagnostic tests performed? 883
7. Was the evaluee’s functional impairment assessed directly? 884
8. Was the possibility of malingering considered? 884
C. Was a Structured Diagnostic or Functional Assessment Instrument or
Test Used? 885
1. Has the reliability and validity of the instrument or test been
established? 885
2. Does the person being evaluated resemble the population for
which the instrument or test was developed? 886
3. Was the instrument or test used as intended by its developers? 887
D. How Was the Expert’s Judgment Reached Regarding the Legally
Relevant Question? 889
1. Were the findings of the assessment applied appropriately to the
question? 889
III. Case Example, 892
A. Facts of the Case, 892
B. Testimony of the Plaintiff’s Expert on Negligence, 893
C. Questions for Consideration, 893
D. Testimony of the Plaintiff’s Expert on Damages, 893
E. Questions for Consideration, 894
References on Mental Health Diagnosis and Treatment, 895
References on Mental Health and Law, 895
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Reference Guide on Mental Health Evidence
I. Overview of Mental Health Evidence
A. Range of Legal Cases in Which Mental Health Issues Arise
Evidence presented by mental health experts is common to a broad array of legal
cases—criminal and civil. In the criminal realm, these include assessments of
defendants’ mental states at the time of their alleged offenses (e.g., criminal respon-
sibility and diminished capacity1) and subsequent to the offenses, but prior to the
initiation of the adjudicatory process (e.g., competence to consent to a search
or waive Miranda rights2). As cases move toward adjudication, evaluation may
be required of defendants’ competence to stand trial or to represent themselves
at trial.3 Postconviction, mental health evidence may be introduced with regard
to sentencing, including suitability for probation and conditions of probation.4
Capital cases uniquely may raise questions regarding a condemned prisoner’s
competence to waive appeals or to be executed.5 Postconfinement, mental health
considerations may enter into parole determinations. Indeed, the development of
1. 18 U.S.C. § 17 (defining standard and burden of proof for insanity defense); Clark v. Arizona,
548 U.S. 735 (2006) (on the use of testimony for diminished capacity).
2. See Thomas Grisso, Evaluating Competencies: Forensic Assessments and Instruments (2002);
Miranda v. Arizona, 384 U.S. 436 (1966) (holding confessions inadmissible unless suspect made aware
of rights and waives them); Colorado v. Connelly, 479 U.S. 157 (1986) (holding that mental condition
alone will not make a confession involuntary under the Fourth Amendment but may be used as a factor
in assessing a defendant’s voluntariness); United States v. Elrod, 441 F.2d 353 (5th Cir. 1971) (holding
that a person of subnormal intelligence may be deemed incapable of giving consent). See Wayne R.
LaFave, Search and Seizure 92–93 (2004); Wayne R. LaFave, Criminal Procedure 363–65 (2004);
Brian S. Love, Comment: Beyond Police Conduct: Analyzing Voluntary Consent to Warrantless Searches by
the Mentally Ill and Disabled, 48 St. Louis U. L.J. 1469 (2004).
3. Dusky v. United States, 362 U.S. 402 (1960) (establishing standard for competence to stand
trial); Pate v. Robinson, 383 U.S. 375 (1966) (holding that the Due Process Clause of the Fourteenth
Amendment does not allow a mentally incompetent criminal defendant to stand trial); Farretta v.
California, 422 U.S. 806 (1975) (upholding defendant’s right to refuse counsel and represent himself);
Indiana v. Edwards, 554 U.S. 164 (2008) (finding that the standards for competency to stand trial and
to represent oneself need not be the same).
4. Roger W. Haines, Jr., et al., Federal Sentencing Guidelines Handbook §§ 5B1.3(d)(5),
5D1.3(d)(5), 5H1.3 (2007–2008).
5. See Ford v. Wainwright, 477 U.S. 399 (1986) (upholding the common law bar against
executing the insane and holding that a prisoner is entitled to a judicial hearing before he may be
executed); Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) (holding that death row prisoners are
not barred from filing incompetence to be executed claims by dismissal of previous federal habeas
petitions); Panetti v. Quarterman, 551 U.S. 930 (2007) (ruling that defendants sentenced to death
must be competent at the time of their execution); Atkins v. Virginia, 536 U.S. 304 (2002) (finding
that executing the mentally retarded constitutes cruel and unusual punishment under the Eighth
Amendment); Rees v. Peyton, 384 U.S. 312 (1966) (formulating the test for competency to waive
further proceedings as requiring that the petitioner “appreciate his position and make a rational
choice with respect to continuing or abandoning further litigation or on the other hand whether he
is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in
the premises.”).
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specialty services for probationers and parolees with mental disorders suggests that
mental health professionals’ input at this stage is likely to increase in the future.6
Mental health evidence in civil litigation is frequently introduced in personal
injury cases, where emotional harms may be alleged with or without concomitant
physical injury.7 Issues of contract may turn on the competence of a party at the
time that the contract was concluded or whether that person was subject to undue
influence,8 and similar questions may be at the heart of litigation over wills and
gifts.9 Broader questions of competence to conduct one’s affairs are considered in
guardianship cases,10 and more esoteric ones may arise in litigation challenging a
person’s competence to enter into a marriage or to vote.11 Suits alleging infringe-
ment of the statutory and constitutional rights of persons with mental disorders
(e.g., under the Americans with Disabilities Act or the Civil Rights of Institu-
tionalized Persons Act) often involve detailed consideration of psychiatric diag-
nosis and treatment and of institutional conditions.12 Allegations of professional
6. Jennifer Skeem & Jennifer Eno Louden, Toward Evidence-Based Practice for Probationers and
Parolees Mandated to Mental Health Treatment, 57 Psychiatric Servs. 333 (2006).
7. Dillon v. Legg, 441 P.2d 912 (Cal. 1968) (allowing recovery based on emotional distress not
accompanied by physical injury); Molien v. Kaiser Foundation Hospitals, 616 P.2d 813 (Cal. 1980)
(holding that plaintiff who is direct victim of negligent act need not be present when act occurs to
recover for subsequent emotional distress); Rodriguez v. State, 472 P.2d 509 (Haw. 1970) (permitting
recovery where a reasonable person would suffer serious mental distress as a result of defendant’s
behavior); Roes v. FHP, Inc., 985 P.2d 661 (Haw. 1999) (allowing assessment of damages for
negligent infliction of emotional distress when plaintiff was in actual physical peril, even if no injury
was suffered); Albright v. United States, 732 F.2d 181 (C.A.D.C. 1984) (holding that alleging mental
distress is sufficient to confer standing); Cooper v. FAA, No. 07-1383 (N.D. Cal. Aug. 2008), rev’d and
remanded, 596 F.3d 538 (9th Cir. 2010) (discussing mental distress as a result of disclosure of personal
information); Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173 (11th Cir. 2007) (holding
damages available under § 504 of the Rehabilitation Act when emotional distress was foreseeable).
8. See generally E. Allan Farnsworth, Contracts 228–33 (2004); John Parry & Eric Y. Drogin,
Mental Disability Law, Evidence, and Testimony 151–52, 185–86 (2007).
9. See generally William M. McGovern, Jr. & Sheldon F. Kurtz, Wills, Trusts and Estates Including
Taxation and Future Interests 292–99 (2004); Parry & Drogin, supra note 8, at 149–51, 182–85.
10. Parry & Drogin, supra note 8, at 138–47, 177–81.
11. Id. at 54. Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001) (finding a state law denying
the vote to anyone under guardianship by reason of mental disability in violation of the Equal
Protection Clause of the U.S. Constitution and Title II of the Americans with Disabilities Act (ADA));
Missouri Protection & Advocacy Servs. v. Carnahan, 499 F.3d 803 (8th Cir. 2007) (upholding a state
law allowing disenfranchisement of persons under guardianship because it permits individualized
determinations of capacity to vote).
12. Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998) (holding that ADA
coverage extended to prisoners); Clark v. State of California, 123 F.3d 1267 (9th Cir. 1997) (finding
state not immune on Eleventh Amendment grounds to suit alleging discrimination under ADA by
developmentally disabled inmates); Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) (upholding District
Court’s finding that prison conditions, including inadequate mental health provisions, violated the
Eighth Amendment of the U.S. Constitution); Gaul v. AT&T, Inc., 955 F. Supp. 346 (D.N.J. 1997)
(finding that depression and anxiety disorders may constitute a mental disability under the ADA);
Anderson v. North Dakota State Hospital, 232 F.3d 634 (8th Cir. 2000) (finding that a plaintiff’s fear
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malpractice by mental health professionals, including failure to protect foreseeable
victims of a patient’s violence,13 invariably call for mental health expert testimony,
as do commitment proceedings for the hospitalization of persons with mental
disorders14 or who are alleged to be dangerous sexual offenders.15
1. Retrospective, contemporaneous, and prospective assessments
Depending on the questions at issue in a given proceeding, evaluators may be
asked to assess the state of mind—including diagnosis and functional capacities—of
a person at some point in the past, at present, or in the future.
Retrospective assessments are called for when criminal defendants assert
insanity or diminished responsibility defenses, claiming that their state of mind at
the time of the crime should excuse or mitigate the consequences of their behav-
iors, or when questions are raised about competence at some point in the past to
waive legal rights (e.g., waiver of Miranda rights).16 In civil contexts, challenges
to the capacity of a now-deceased testator to write a will or of a party to enter
into a contract, among other issues, will call for a similar look back at a person’s
functioning at some point in the past.17 A variety of sources of information are
available for such assessments. In some cases (e.g., in criminal proceedings), the
defendant is likely to be available for clinical examination, whereas in other
cases he or she will not be able to be assessed directly (e.g., challenges to a will).
Although the person being evaluated will usually have an interest in portraying
him- or herself in a particular light, a direct assessment can nonetheless be valuable
in assessing the consistency of the reported symptoms with other aspects of the
history and current status of the person. Whether or not the person can be assessed
directly, information from persons who were in contact with the person before
and during the time in question, including direct reports and contemporaneous
of snakes did not limit ability to work); Sinkler v. Midwest Prop. Mgmt., 209 F.3d 678 (7th Cir. 2000)
(holding driving phobia did not substantially limit major life activity of working and hence was not an
impairment under the ADA); McAlinden v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999), cert.
denied, 120 S. Ct. 2689 (2000) (reversing summary judgment against plaintiff who alleged that anxiety
and somatoform disorders impaired major life activities of sexual relations and sleep); Steele v. Thiokol
Corp., 241 F.3d 1248 (10th Cir. 2001) (finding major life activity under the ADA of interacting with
others not substantially impaired by obsessive–compulsive disorder).
13. Tarasoff v. Regents of the Univ. of California, 551 P.2d 334 (Cal. 1976).
14. Addington v. Texas, 441 U.S. 418 (1979) (holding that standard of proof for involuntary
commitment is clear and convincing evidence); O’Connor v. Donaldson, 422 U.S. 563 (1975)
(holding unconstitutional the confinement of a nondangerous mentally ill person capable of surviving
safely in freedom alone or with assistance).
15. Kansas v. Hendricks, 521 U.S. 346 (1997); Kansas v. Crane, 534 U.S. 407 (2002).
16. Predicting the Past: Retrospective Assessment of Mental States in Litigation (Robert I.
Simon & Daniel W. Shuman eds., 2002); Bruce Frumkin & Alfredo Garcia, Psychological Evaluations
and Competency to Waive Miranda Rights. 9 The Champion 12 (2003).
17. See Thomas G. Gutheil, Common Pitfalls in the Evaluation of Testamentary Capacity, 35 J. Am.
Acad. Psychiatry & L. 514 (2007); Farnsworth, supra note 8, at 228–33.
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records, is usually an essential part of the evaluation. Sometimes the available data
from all of these sources are so limited or contradictory that they will not allow a
judgment to be made of a person’s state of mind at a point in the past. However,
most experienced forensic evaluators appear to believe that conclusions regarding
past mental state can often be reached with a reasonable degree of certainty if suf-
ficient information is available.18
The most straightforward task for a mental health professional is to evaluate a
person’s current mental state. In criminal justice settings, concerns about a person’s
current competence to exercise or waive rights will call for such evaluations (e.g.,
competence to stand trial or to represent oneself at trial).19 Civil issues calling for
contemporaneous assessments include workers’ compensation and other disability
claims and litigation alleging emotional harms due to negligent or intentional torts,
workplace discrimination, and other harm-inducing situations.20 At the core of an
assessment of current mental state is the diagnostic evaluation described below. As
in all evaluations in legal contexts, careful consideration needs to be given to the
possibility of secondary gain from manipulation of their presentation for persons
being assessed.21
In contrast to contemporaneous assessments, the evaluation of a person’s future
mental state and consequent behaviors is fraught with particular difficulty, especially
when the outcome being predicted occurs at a relatively low frequency.22 Such
predictive assessments may come into play in the criminal process when bail is set,23
at sentencing,24 and as part of probation and parole decisions.25 They often involve
18. Robert I. Simon, Retrospective Assessment of Mental States in Criminal and Civil Litigation: A
Clinical Review in Simon and Shuman, supra note 16 at 1, 8; McGregor v. Gibson, 248 F.3d 946, 962
(10th Cir. 2001) (stating that although disfavored, retrospective determinations of competence may
be allowed in cases when a meaningful hearing can be conducted).
19. See Dusky v. United States, 362 U.S. 402 (1960) (holding that a criminal defendant must
understand the charges and be able to participate in his defense); Godinez v. Moran, 509 U.S. 389
(1993) (holding that a defendant competent to stand trial is also sufficiently competent to plead guilty
or waive the right to legal counsel).
20. See, e.g., Kent v. Apfel, 75 F. Supp. 2d 1170 (D. Kan. 1999); Quigley v. Barnhart, 224 F.
Supp. 2d 357 (D. Mass. 2002); Rivera v. City of New York, 392 F. Supp. 2d 644 (S.D.N.Y. 2005);
Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 204 (N.D. Tex. 1996).
21. See United States v. Binion, 132 F. App’x 89 (8th Cir. 2005) (upholding an obstruction of
justice conviction and sentencing determination based on a finding that defendant had feigned mental
illness). See discussion, infra, Section I.C.2.
22. Joseph M. Livermore et al., On the Justifications for Civil Commitment, 117 U. Pa. L. Rev.
75–96 (1968).
23. United States v. Salerno, 481 U.S. 739 (1987); United States v. Farris, 2008 WL 1944131
(W.D. Pa. May 1, 2008).
24. Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon 1981); Barefoot v. Estelle, 463 U.S. 880
(1983).
25. See 28 C.F.R. § 2.19 (2008) for parole determination factors. For probation determination
factors, see 18 U.S.C.A. § 356 (2008). See generally Neil Cohen, The Law of Probation and Parole
§§ 2, 3 (2008).
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estimates of the probable effectiveness of treatment, especially in the juvenile justice
system, where the lack of amenability of juveniles to mental health treatment is
frequently a key consideration in decisions regarding transfer to adult courts.26 Pre-
dictions regarding behavior related to mental disorders are also seen in civil cases,
for example, in the civil commitments of persons with mental disorders and in the
newer statutes authorizing the commitment of dangerous sex offenders.27 Damage
assessments in civil cases alleging emotional harms will usually call for some estimate
regarding the duration of symptoms and response to treatment.28 The inescapable
uncertainties of the course of mental disorders and their responsiveness to inter-
ventions create part of the difficulty in such assessments, but an equally important
contribution is made by the unknowable contingencies of life. Will a person’s
spouse leave or will the person lose his job or his home? As a consequence, will
the person return to drinking, stop taking medication, or reconnect with friends
who have continued to engage in criminal behaviors? At best, predictive assess-
ments can lead to general statements of probability of particular outcomes, with an
acknowledgment of the uncertainties involved.29
2. Diagnosis versus functional impairment
A diagnosis of mental disorder per se will almost never settle the legal question in
a case in which mental health evidence is presented. However, a diagnosis may
play a role in determining whether a claim or proceeding can go forward. The
clearest example in criminal law is embodied in the insanity defense, where the
impairments of understanding, appreciation, and behavioral control that comprise
the various standards must be based, in one popular formulation, on a “mental
disease or defect.”30 In the absence of a diagnosis of mental disorder (including
mental retardation and the consequences of injury to the brain), an affirmative
26. Michael G. Kalogerakis, Handbook of Psychiatric Practice in Juvenile Court 79–85 (1992).
27. See O’Connor v. Donaldson, 422 U.S. 563 (1975) (finding that a state may not confine a
citizen who is nondangerous and capable of living by herself or with aid); for an example of a sex
offender civil commitment statute, see Minn. Stat. § 253B.185 (2008). The constitutionality of civil
commitment for dangerous sex offenders was upheld in Kansas v. Hendricks, 521 U.S. 346 (1997)
(setting forth the procedures for the commitment of convicted sex offenders deemed dangerous due
to a mental abnormality).
28. Gary B. Melton et al., Psychological Evaluations for the Courts: A Handbook for Mental
Health Professionals and Lawyers 413–14 (2007).
29. For a more detailed discussion of predictive assessment regarding future dangerousness, see
Section I.E.
30. The American Law Institute standard for the insanity defense reads, “a person is not
responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he
lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct
to the requirements of the law.” Model Penal Code and Commentaries § 4.01(1) (Official Draft and
Revised Comments 1985) (adopted by American Law Institute, May 24, 1962). The federal insanity
defense was codified in the Insanity Defense Reform Act of 1984, codified at 18 U.S.C. § 17. See also
Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954) (“[A]n accused is not criminally responsible
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defense of insanity will not prevail.31 Comparable situations exist in civil commit-
ment proceedings and work disability determinations.32
Even where the presence of a mental disorder is not an absolute prerequisite
to claims involving mental state, it will often play a de facto threshold role. Thus,
evidence in cases involving claims of incompetence (e.g., to engage in a contrac-
tual relationship) or emotional harms will often address the presence of a diagnosis,
even though that may not strictly be required.33 In these cases, failure to establish a
diagnosis may be taken by a factfinder as an indicator of the probable lack of valid-
ity of the claim. That is, it may be assumed that unless an underlying disorder can
be identified, the claimed impairments are bogus. Thus, conflicting testimony over
the presence or absence of a diagnosis is common in cases in which mental health
evidence is offered, even when not mandated by the operative legal standard.
Notwithstanding the threshold role played by a mental disorder diagnosis in
many cases, the ultimate legal issue usually will turn on the impact of the mental
disorder on the person’s functional abilities.34 Those abilities may relate to the
person’s cognitive capacities, including the capacity to make a legally relevant
decision (e.g., granting consent for the police to conduct a warrantless search,
altering a will) or the capacity to behave in a particular way (e.g., conforming
one’s conduct to the requirements of the law, cooperating with an attorney in
one’s own defense, resisting undue influence), or both (e.g., skill as a parent,
competence to proceed with criminal adjudication). The former set of capaci-
ties can be denoted as decisional capacities and the latter set as performative capacities.
Many of the legal questions to which mental health evidence may be relevant will
involve a determination of the influence of a mental state or disorder on one or
both of these sets of capacities. The mere presence of a mental disorder will almost
always be insufficient for that purpose. Mental disorder in a criminal defendant,
for example, if it does not interfere substantially with competence to stand trial,
does not present a basis for postponing adjudication of the case.35 Some degree of
mental disorder, including dementia, without affecting relevant abilities, does not
provide grounds for voiding a will.36 The point can be generalized to all criminal
and civil competency determinations, most assessments of emotional harms, and
if his unlawful act was the product of mental disease or defect.”); note United States v. Brawner, 471
F.2d 969 (1972), which overturned the Durham Rule (or “product test”).
31. Tennard v. Dretke, 542 U.S. 274 (2004); Bigby v. Dretke, 402 F.3d 551 (5th Cir. 2005).
32. Addington v. Texas, 441 U.S. 418 (1979) (setting the burden of proof required for
involuntary civil commitment as requiring clear and convincing evidence); and Social Security
Administration Listing of Impairments, available at http://www.ssa.gov/disability/professionals/
bluebook/listing-impairments.htm.
33. Farnsworth, supra note 8, §§ 4.6–4.8, at 228–34.
34. Grisso, supra note 2.
35. United States v. Passman, 455 F. Supp. 794 (D.D.C. 1978); United States. v. Valierra, 467
F.2d 125 (9th Cir. 1972).
36. Rossi v. Fletcher, 418 F.2d 1169 (D.C. Cir. 1969); In re Estate of Buchanan, 245 A.D.2d
642 (3d Dept. 1997).
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probably to the majority of cases in which mental health testimony is offered:
Unless a mental disorder can be shown to have affected a person’s functional
capacity, decisional or performative, a diagnosis of mental disorder per se will not
be determinative of the outcome.37
Despite its importance to the adjudicative process, mental health evidence
is often introduced in the context of a serious stigma that attaches to mental dis-
orders38 and considerable confusion regarding their nature, consequences, and
susceptibility to treatment.39 Diagnoses of mental disorders often are perceived to
be less reliable and more subjective than diagnoses of other medical conditions.40
Symptoms of mental disorders may be seen as reflections of moral weakness or lack
of will, and the impact of disorders on functional abilities may not be recognized, or
occasionally may be exaggerated.41 The potential impact and limits of current treat-
ments are not widely understood. Indeed, even the various types of mental health
professionals are frequently confused.42 The remainder of Section I of this reference
guide provides background to clarify these issues; Section II considers questions
specifically related to the introduction of evidence by mental health experts.
B. Mental Health Experts
Evidence related to mental state and mental disorders may be presented by experts
from a number of disciplines, but it is most commonly introduced by psychiatrists
or psychologists.
1. Psychiatrists
Psychiatrists are physicians who specialize in the diagnosis and treatment of men-
tal disorders.43 After college, they complete 4 years of medical school, during
37. For a brief overview of competency evaluations, see Patricia A. Zapf & Ronald Roesch,
Mental Competency Evaluations: Guidelines for Judges and Attorneys, 37 Ct. Rev. 28 (2000), available at
http://aja.ncsc.dni.us/courtrv/cr37/cr37-2/CR37-2ZapfRoesch.pdf. For the underlying standard for
competency to stand trial, see Dusky v. United States, 362 U.S. 402 (1960).
38. Bruce G. Link et al., Measuring Mental Illness Stigma, 30 Schizophrenia Bull. 511 (2004).
39. Bruce G. Link et al., Stigma and Coercion in the Context of Outpatient Treatment for People with
Mental Illnesses, 67 Soc. Sci. & Med. 409 (2008).
40. Thomas A. Widiger, Values, Politics, and Science in the Construction of the DSMs, in Descriptions
and Prescriptions: Values, Mental Disorders, and the DSMs 25 (John Z. Sadler ed., 2002).
41. Michael L. Perlin, “Half-Wracked Prejudice Leaped Forth”: Sanism, Pretextuality, and Why and
How Mental Disability Law Developed as It Did, 10 J. Contemp. Legal Issues 3 (1999); Michael L. Perlin,
“You Have Discussed Lepers and Crooks”: Sanism in Clinical Teaching, 9 Clinical L. Rev. 683 (2003);
Michael L. Perlin, The Hidden Prejudice: Mental Disability on Trial (2000).
42. The degree of popular confusion is underscored by the results of a Web-based search for
“psychiatrist vs. psychologist,” which turns up a remarkably large number of Web sites attempting to
explain the differences between the two professions.
43. Narriman C. Shahrokh & Robert E. Hales, American Psychiatric Glossary 157 (2003).
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which they spend approximately 2 years in preclinical studies (e.g., physiology,
pharmacology, genetics, pathophysiology), followed by 2 years of clinical rota-
tions in hospital and clinic settings (e.g., medicine, surgery, pediatrics, obstetrics/
gynecology, orthopedics, psychiatry).44 Graduating medical students who elect to
specialize in psychiatry enter residency programs of at least 4 years’ duration.45
Accredited residencies must currently offer at least 4 months in a primary care
setting in internal medicine, family medicine, or pediatrics, and at least 2 months
of training in neurology.46 The remainder of a resident’s time is spent learning
psychiatry, including inpatient, outpatient, emergency, community, and consulta-
tion settings, and with exposure to the subspecialty areas of child and adolescent,
geriatric, addiction, and forensic psychiatry. Residents will be taught how to use
treatment techniques, among them medications and various forms of psycho-
therapy. Elective time is usually available to pursue particular interests in greater
depth or to engage in research. Didactic seminars, including sessions on neurosci-
ence, genetics, psychological theory, and treatment, and supervision sessions with
experienced psychiatrists (and sometimes mental health professionals from other
disciplines) complement the clinical experiences.47
After completion of 4 years of residency training, a psychiatrist is designated as
“board eligible,” that is, able to take the certification examination of the American
Board of Psychiatry and Neurology in adult psychiatry.48 Successful completion of
this examination process results in the psychiatrist being designated “board certi-
fied.” Psychiatrists who desire more intensive training in a subspecialty area of
psychiatry—for example, child and adolescent or addiction psychiatry—can take a
1- or 2-year fellowship in that area. The psychiatrist who has completed an accred-
44. Medical schools in the United States are accredited by the Liaison Committee on Medical
Education, which establishes general curricular and other standards that all schools must meet.
Standards are available at http://www.lcme.org/standard.htm. Students can elect to extend their
medical school training by taking additional time to conduct research or to obtain complementary
training (e.g., in public health).
45. Residents who choose to combine adult and child psychiatry training can do so in a 5-year
program, or can follow their 4 years of adult residency with 2 years of child training. Some residents
will also extend their residency training by adding a year or more during which they conduct
laboratory or clinical research.
46. Psychiatric residencies are accredited by the Accreditation Council on Graduate Medical
Education. Program requirements are available at http://www.acgme.org/acwebsite/rrc_400/400_
prindex.asp.
47. See descriptions of several leading psychiatry residency training programs on their Web
sites: Columbia University (http://www.cumc.columbia.edu/dept/pi/residency/index.html); Johns
Hopkins University (http://www.hopkinsmedicine.org/Psychiatry/for_med_students/residency_
general/); Harvard/Longwood Psychiatry Residency (http://harvardlongwoodpsychiatry.org/).
48. Information regarding qualifications for board certification and the examination process is
available from the American Board of Psychiatry and Neurology at http://www.abpn.com/Initial_
Psych.htm.
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ited fellowship49 is eligible for additional board certification in that subspecialty.50
Although fellowship training and board certification indicate expertise in a par-
ticular area of psychiatry, some psychiatrists are recognized by the courts as having
developed equivalent levels of expertise by virtue of extensive clinical experience
and self-designed instruction (e.g., continuing education courses, remaining current
with the professional literature).51
Forensic psychiatry is the subspecialty that focuses on the interrelationships
between psychiatry and the law.52 Hence, forensic psychiatrists are particularly
likely to offer evidence as part of court proceedings. Fellowship training in
forensic psychiatry involves a 1-year program in which fellows are taught forensic
evaluation for civil and criminal litigation and become involved in the treatment
of persons with mental disorders in the correctional system.53 They also learn
about the rules and procedures for providing evidence in legal proceedings and for
working with attorneys. However, training and/or board certification in forensic
psychiatry are not necessarily the best qualification for expertise in a particular
case. Although forensic psychiatrists are likely to have more expertise than general
psychiatrists for certain kinds of evaluations that are the focus of forensic training
(e.g., competence to stand trial, emotional harms), when issues are raised concern-
ing other substantive areas of psychiatry (e.g., the effects of psychopharmacological
agents on a civil defendant’s ability to drive at the time of an accident that allegedly
resulted in injury to the plaintiff), a psychiatrist who specializes in that area will
often have greater expertise than someone with forensic training.
49. Accredited subspecialty training is currently available in addiction, child and adolescent,
forensic, and geriatric psychiatry, and in psychosomatic medicine. Psychiatrists are also eligible for
training in hospice and palliative medicine, pain medicine, and sleep medicine. See accreditation
standards at http://www.acgme.org/acwebsite/rrc_400/400_prindex.asp. Fellowship programs also
exist in some subspecialty areas for which accreditation and board certification are not available, e.g.,
research, psychopharmacology, and public and community psychiatry.
50. Typically, when new subspecialties are recognized and accreditation standards are developed,
a certain period of time (e.g., 5 years) is allowed for psychiatrists who have gained expertise in that area
by virtue of experience or alternative training to achieve board certification. Thus, many psychiatrists
who are today board certified in a subspecialty have not completed a fellowship.
51. For a comparable determination involving a counselor, see Leblanc v. Coastal Mech. Servs.,
LLC, 2005 WL 5955027 (S.D. Fla. Sept. 7, 2005) (quoting Jenkins v. United States, 307 F.2d 637
(D.C. Cir. 1962) for the proposition that the determination of a psychologist’s competence to render
an expert opinion is a case-by-case matter based on knowledge, not claim to a professional title).
52. See the definition of forensic psychiatry offered by the American Academy of Psychiatry
and the Law: “Forensic psychiatry is a medical subspecialty that includes research and clinical practice
in the many areas in which psychiatry is applied to legal issues,” available at http://www.aapl.org/
org.htm. Psychiatrists who have been certified in adult or child psychiatry by the American Board
of Psychiatry and Neurology, and who have completed a forensic psychiatry fellowship, can take the
examination for subspecialty certification in forensic psychiatry. A description of the requirements for
certification can be found at http://www.abpn.com/fp.htm. Board certification must be renewed by
taking a recertification examination every 10 years.
53. See the accreditation standards in forensic psychiatry at http://www.acgme.org/acWebsite/
downloads/RRC_progReq/406pr703_u105.pdf.
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the ability of an instrument or test to foretell a person’s condition or behavior at
some point in the future.
When the results of an evaluation using an instrument or test are offered
in evidence, clarification of the extent to which reliability and validity have
been demonstrated is an essential aspect of determining admissibility and weight.
Indeed, based on its discussion in Daubert, when the U.S. Supreme Court referred
to the “reliability” of a scientific technique, it was encompassing both reliability
and validity as usually understood in the social sciences.380 Which aspects of reli-
ability and validity are relevant to a particular case will depend on the purpose for
which the data from the test are being introduced. For example, if the evidence
is addressing change in a person’s test results over time, a measure’s test-retest
reliability becomes crucial. If more than one evaluator was involved, interrater
reliability may be key. Discriminant validity will be relevant when two states or
conditions must be distinguished from each other and predictive validity when
forecasts of future mental state or behavior are being made. Careful evaluators will
only use instruments or tests that have had the relevant types of reliability and
validity confirmed in peer-reviewed publications and will be prepared to cite such
data should questions be raised. Of course, some tests are so widely used over a
sustained period that their reliability and validity are generally accepted (e.g., the
MMPI-2) and do not ordinarily need to be demonstrated again prior to introduc-
ing data based on an evaluation in which they were employed. However, the reli-
ability and validity of some longstanding tests (e.g., the Rorschach ink-blot test)
remain controversial,381 and data even from established tests can be used to reach
conclusions of uncertain validity. Thus, novel uses of instruments or tests may also
require that their psychometric characteristics for that purpose be demonstrated.
2. Does the person being evaluated resemble the population for which the
instrument or test was developed?
Reliability and validity once established are not necessarily universally applicable.
If an assessment technique is being used on someone drawn from a different
population than the one for which the instrument or test was developed, and the
new group is likely to differ in some material way, reliability and/or validity may
need to be reestablished. An example with regard to reliability might be the use
with a child of an instrument that was developed to measure symptoms of mental
disorders in adults.382 Either the nature of the symptoms that adults experience or
380. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).
381. Lilienfeld et al., supra note 127.
. Lilienfeld
382. The frequently differing presentations of mental disorders in children have led to the
development of instruments intended specifically for use in that population. See, e.g., David Shaffer et
al., NIMH Diagnostic Interview Schedule for Children, Version IV (NIMH DISC-IV): Description, Differences
from Previous Versions, and Reliability of Some Common Diagnoses, 39 J. Am. Acad. Child & Adolescent
Psychiatry 28 (2000).
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the ability of adults to describe their symptoms could be substantially different with
children, leading to greater difficulty in applying the instrument or test. Thus, it
might be prudent for an evaluator to ascertain that data exist showing good reli-
ability in this new population before using this assessment approach. An example
involving validity is the use of predictive scales, such as instruments to assess risk
of future violence, with a different group than the one from which the predictive
algorithm was derived.383 Concretely, if a predictive test is based on a criminal, but
nonmentally disordered sample, applying it to persons with mental disorders—for
whom very different variables may affect their behavior—is dubious in the absence
of data demonstrating that it is valid in the latter group and vice versa.
It should be emphasized, however, that reestablishing reliability and validity is
only necessary when the original group and the new population are likely to differ
in some relevant way. Why an instrument developed in California, for example,
would not be as reliable and valid when used in Texas is not at all clear. Moreover,
the nature of the instrument or test will play a role. Diagnostic tests are likely to
differ in their characteristics across populations only if the disorders or the ways
in which they manifest themselves are different, which will not usually be the
case. Predictive tests, however, may be more sensitive to cultural, socioeconomic,
geographic, and other considerations that could introduce new predictors of future
conditions or behaviors into the mix. In addition, tests that involve comparisons
with broader populations are said to be “normed” against those groups,384 and the
comparative data (e.g., the evaluee is in the lowest quartile of performance) may
be invalid unless the test is renormed for the group of which the person being
evaluated is a member. Thus, whether additional reliability and validity testing is
required for a new use, or whether a test must be renormed before being used in
this way, is necessarily a fact-specific determination.
3. Was the instrument or test used as intended by its developers?
Established reliability and validity are necessary but not sufficient to deter-
mine whether an instrument or test has yielded reliable and valid results. Unless
the assessment approach was applied in the manner intended by the developers,
the data on reliability and validity may simply not be applicable to a particular
use. Three possible areas of deviation relate to training in, administration of, and
scoring of the assessment tool.
a. Training
Some instruments and tests are so straightforward in their use that little or no train-
ing is required. Reading the instructions accompanying the assessment tool might be
383. See, e.g., John Monahan et al., The Classification of Violence Risk, 24 Behav. Sci. & L. 721
(2006).
384. For a good discussion of norming in the forensic context, see Grisso, supra note 2, at 56–59.
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sufficient. In some cases, though, training may be required to ask the questions prop-
erly, especially when followup probing of responses is necessary or when evaluees
are asked to perform tasks that must be conducted in a particular way. Diagnostic
instruments, in particular, may have complex “skip-out” rules, that is, procedures
for determining when to include or omit certain questions based on the person’s
responses to previous questions.385 When information is acquired at least in part
from existing records, rather than from the evaluee directly, rules may exist for how
the information should be identified and abstracted. All of these characteristics of an
assessment approach may require elaborate training for proper implementation.386
Sometimes the training can be acquired from test manuals, but for more complex
instruments or tests, face-to-face training with an opportunity to practice adminis-
tration is necessary. Developers of such instruments or tests may offer such training
in 1-day or multiday seminars that professionals can arrange to take.387 Thus, a
key question in assessing data based on an instrument or test is whether proper use
requires special training, and if so, whether the assessor was trained in the technique.
b. Administration
Even if training was obtained, the reliability and validity of an instrument or test
will depend on whether the assessor administered the test in the proper way. Many
assessment tools require that questions be asked in a given sequence and that they
be phrased in a particular way. After an incorrect response, it may be permissible
to ask the question again, but only a certain number of times. Probing of responses
may be needed, but only certain probes may be permitted. Some tests are timed,
with a given period allotted for the completion of a particular task. Deviations
from any of these requirements could make the published data on the psychometric
characteristics of the tool inapplicable to its use in a particular instance. Thus, a
second crucial question is whether the instrument or test was administered in the
same way as it was when its reliability and validity were established.
c. Scoring
Assessment tools generally require that evaluees’ responses be scored in some
way. For some instruments and tests, the scoring is simple and self-evident, for
example, the number of positive responses is totaled to yield the score for the test,
or evaluees themselves are asked to indicate the severity of their symptoms on a
385. The Diagnostic Interview Schedule, which is widely used in epidemiological studies of
mental disorders in the United States, is an example. See a description of the latest version of the
instrument at http://epi.wustl.edu/CDISIV/dishome.aspx.
386. Indeed, some psychological and neuropsychological tests should be administered only by
psychologists trained in their use.
387. The creator of the popular Psychopathy Check List (PCL-R), for example, offers an
extensive training program for clinicians and researchers desiring to learn proper administration of the
instrument. See the Web site at http://www.hare.org/training/.
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1-to-7 scale. Or the results could be calculated by a computer program that auto-
matically applies the relevant algorithm, generates statistical data, and even draws
comparisons with broader groups, such as the general population or persons with a
particular disorder. Often, however, particularly when evaluees’ verbal or narrative
responses are elicited, more complex scoring rules exist. An instrument assessing
the severity of symptoms, for example, may require the person administering it
to categorize responses along a numerical scale,388 and specific capacity assessment
tools frequently require similar judgments to be applied.389 Published data on the
reliability of scoring may indicate that it is possible for an instrument to be scored
in the same way by many different raters, but unless the person administering the
instrument in this particular circumstance adheres to the usual rules, the results of
the evaluation may not be comparable to those that would be obtained by another
rater and may be invalid as well. Hence, a third important question when such
evidence is introduced deals with whether the rules for scoring responses were
properly applied.
D. How Was the Expert’s Judgment Reached Regarding the
Legally Relevant Question?
In evaluating testimony from mental health experts, as noted in the preceding
sections, their training and the manner in which they conduct their assessments is
vital information. However, the value of an expert’s opinion also depends on the
process by which the data were assessed and a conclusion was reached.
1. Were the findings of the assessment applied appropriately to the question?
a. Were diagnostic and functional issues distinguished?
Mental health professionals without experience in performing particular forensic
evaluations may fail to recognize that the legal question being asked deals with a
person’s functional capacity, not with some aspect of their clinical state per se.390
As a result, they may mistakenly base their opinions on the presence of a particu-
lar diagnosis or symptom cluster rather than on the person’s capacity to perform
in the legally relevant manner. Studies over many years indicate that this has
occurred frequently in testimony regarding defendants’ competence to stand trial,
in which experts often conflated the presence of psychosis with incompetence,
and concluded that any psychotic defendant was ipso facto incapable of proceed-
388. E.g., the Brief Psychiatric Rating Scale. See Overall & Gorham, supra note 122.
389. E.g., the MacArthur Competence Assessment Tool for Treatment; Thomas Grisso & Paul
S. Appelbaum, MacArthur Competence Assessment Tool for Treatment (MacCAT-T) (1998).
390. See Dusky v. United States, 362 U.S. 402 (1960); Thomas Grisso, Competency to Stand
Trial Evaluations: A Manual for Practice 1–23 (1988).
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ing to trial.391 Similar problems may occur in hearings on guardianship or contests
regarding testimonial capacity, where the person’s ability to manage or dispose
of assets might be thought incorrectly to turn solely on the clinical question of
whether dementia is present, as opposed to the legal issue of whether the person
retains the necessary capacities despite his or her condition.392 This problem may
be more likely to occur—and to go undetected—when experts are allowed or
encouraged to address the ultimate legal issue in their testimony.393 When experts
are permitted to testify to the ultimate question, the importance of probing their
reasoning is magnified.394 Experts can be asked to identify the relevant functional
capacities and to speak directly to the impact of the person’s mental state on those
capacities.395 That allows their reasoning processes and the correctness of their
assumptions about the relevant functional standard to be tested.
b. Were the limitations of the assessment and the conclusions acknowledged?
Most assessments are imperfect. Evaluees are less than cooperative. Records are
unavailable. Evidence from witnesses is conflicting. Inadequate time is avail-
able. Or the evaluator may simply have forgotten to ask about some piece of
information that would have been helpful. Experts should be able to identify the
limitations of their evaluations, and the possible impact of those less-than-optimal
aspects of the assessments. It is unlikely that an expert would be prepared to offer
testimony if he or she believed that the limitations rendered the opinions invalid.
But competent experts should be able to explain why, despite the limitations
(which can occur even in the best evaluations by the most experienced experts),
their evaluations were adequate to allow them to draw the conclusions that they
intend to present.
A comparable set of limitations can occur when conclusions are drawn and
opinions formulated. Just as all assessment tools have error rates, so do expert wit-
nesses, although their rates are difficult to subject to statistical analysis. Errors may
be introduced by inadequacies in the data available or the uncertainties inherent
in particular determinations, especially predictions of future mental states and
behaviors. As noted above, it is often impossible to specify the contingencies that
may arise in a person’s life that could influence their mental states and actions.
Thus, any prediction, no matter how firmly grounded in available data, has a
391. See, e.g., A. Louis McGarry, Competence for Trial and Due Process Via the State Hospital, 122
Am. J. Psychiatry 623 (1965). More recent studies suggest that this is now a less common problem, as
educational efforts among mental health professionals who do such work have had a positive impact.
Robert A. Nicholson & Karen E. Kugler, Competent and Incompetent Criminal Defendants: A Quantitative
Review of Comparative Research, 109 Psychol. Bull. 355 (1991).
392. See Parry & Drogin, supra note 8, at 149–51.
393. See Section I.G.2, supra.
394. See Parry & Drogin, supra note 8, at 429–31.
395. Buchanan, supra note 319.
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degree of uncertainty attached to it that a competent expert should be expected
to acknowledge.
c. Are opinions based on valid empirical data rather than theoretical formulations?
From the development of Freud’s theories in the late nineteenth and early twen-
tieth centuries until the present, many mental health professionals have based
their clinical approaches on psychoanalytically inspired concepts. Some of these
concepts have been confirmed scientifically (e.g., the existence of unconscious
mental states), whereas others have not (e.g., dreams always represent the fantasied
fulfillment of wishes). Although psychoanalytical theories and the psychodynamic
psychotherapies that derive from them have declined in popularity in recent
decades, many mental health professionals have received psychodynamic training
and use the concepts they have learned to assess and treat their patients. Regard-
less of the possible utility of these theories from a clinical perspective, which is
controversial and may depend on the condition being treated, they are arguably
more problematic when they serve as the basis for conclusions offered as part of
legal proceedings. Nor are psychoanalytical theories the only ones that mental
health professionals use; alternative approaches may be based on theories that have
a greater or lesser degree of empirical support.
To the extent that expert opinions are introduced to inform the judgments
of legal factfinders, it is important for them to be based, insofar as possible, on
empirically validated conclusions rather than on untested or untestable theories.
That appears to be the import of the U.S. Supreme Court’s decision in Kumho
Tire.396 As Slobogin plausibly maintains, some legal questions (such as those
concerning past mental states) may not easily lend themselves to approaches
based on scientific methods, but expert opinions may nonetheless be of assis-
tance to the finders of fact.397 At a minimum, it would seem fair for an expert
to indicate when that is the case, so that the factfinder can make an informed
judgment about the appropriate degree of reliance to be had on that opinion.
And when empirically tested approaches are available, it would appear to be
incumbent on an expert to use them or to be prepared to explain why they
were not employed.
396. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (holding that the Daubert standard
for admitting expert testimony also applies to nonscientists).
397. Christopher Slobogin, supra note 305.
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III. Case Example
A. Facts of the Case
John, a 25-year-old Army veteran who saw combat in Iraq, had begun to have
anomalous experiences in the 4 years since his discharge from active duty. At first,
he believed that people were staring at him, though he was not sure why. Later,
he came to the conclusion that they thought he was a drug addict or a criminal,
ideas confirmed when he heard voices coming through the walls of his apartment,
which he attributed to the neighbors, saying, “He’s using drugs” and “He steals
things.” To avoid people’s stares, John left his apartment less often, spending most
of his time listening to loud music, which helped to drown out the voices. He
also found that alcohol made it easier to ignore the voices, and began to drink up
to a gallon of wine each day.
One evening when the voices were particularly loud and insistent, he began
banging on the walls of his apartment and yelling that he would kill the neighbors
if they did not stop talking about him. Thirty minutes later, the police arrived to
take him to the local Department of Veterans Affairs (VA) hospital, where he was
admitted to the psychiatric unit. Over the course of his hospitalization, he received
antipsychotic medication and participated in group therapy. By the end of his
hospital stay, although he still wondered whether people were staring at him
oddly, he no longer heard people’s voices making derogatory statements about
him. He denied having thoughts of hurting himself and other people. When asked
whether he would continue taking his medication and would attend outpatient
sessions, he said he would. Fourteen days after admission, John was discharged to
outpatient care.
Immediately after discharge, John stopped his medication, and he never saw
his outpatient therapist. As he became more suspicious of his neighbors, he again
began to hear them talking about him, and he resumed drinking several bottles
of wine each day to deal with the situation. Three weeks after discharge, while
he was on his way to the grocery store to pick up more wine, a passerby acci-
dentally bumped into John. Reacting with fury, John pummeled the older man
with his fists, then began beating him with a broomstick that he found on the
sidewalk nearby. It took four people who lived in nearby buildings to pull John
off his victim.
In the wake of the assault, the victim brought suit against the VA for neg-
ligence in John’s treatment. The suit alleged that VA mental health staff should
have known that John was dangerous as a result of his mental disorder and not
fit for discharge. Damages were claimed as a result of physical injuries and the
development of PTSD.
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B. Testimony of the Plaintiff’s Expert on Negligence
At trial, the plaintiff introduced testimony from a board-certified forensic psy-
chiatrist, Dr. A, who was 20 years out of residency training and had not directly
treated patients for the past 13 years. Dr. A had reviewed the medical records of
John’s treatment and the police records of the assault, but he had not examined
John directly. On direct examination, he testified that John had a diagnosis of
schizophrenia, with a number of risk factors for violence, including having killed
enemy combatants in Iraq, excessive alcohol consumption, and delusions of per-
secution. It was Dr. A’s opinion that the VA treatment team had failed to abide
by the standard of care because they had not used a structured violence risk-
assessment instrument to determine John’s dangerousness. Moreover, although
they had obtained a CT brain scan that had shown frontal lobe injury from an
old automobile accident, the team had failed to recognize that this constituted
an additional risk factor for violence. However, Dr. A believed that, even on the
basis of the available information, at the time of hospital discharge it was reason-
ably foreseeable that John would be violent, and thus he should not have been
allowed to leave the hospital.
C. Questions for Consideration
1. Given that Dr. A had devoted himself entirely to forensic evaluations and
had not actually treated a patient for 13 years, should he have been con-
sidered qualified to offer opinions about whether John’s evaluation and
treatment had conformed to the standard of care?
2. How reliable were Dr. A’s conclusions regarding John’s diagnosis and like-
lihood of committing an act of violence, given that he did not examine
John or speak directly to anyone who had been in contact with him, but
relied solely on hospital and police records?
3. What information would be needed to determine whether the failure to
use a structured violence risk-assessment tool should be considered evi-
dence of negligence? What information would be needed to determine
whether the alleged failure to recognize the relationship between CT
evidence of frontal brain damage and the risk of violence should be con-
sidered evidence of negligence?
4. Is the assertion that John’s violence was reasonably foreseeable sufficient
to establish a prima facie case for the plaintiff? If not, what type of data
should Dr. A have presented to support his testimony?
D. Testimony of the Plaintiff’s Expert on Damages
A second expert, Dr. B, a clinical psychologist in general clinical practice, offered
testimony on the mental health consequences of the assault. Dr. B had been treat-
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ing the victim prior to the assault and had been seeing him weekly for cognitive
behavioral therapy since the assault. She testified that the patient described hav-
ing intrusive thoughts about the attack, nightmares, difficulty concentrating, and
startle responses when people came near him without his having noticed them.
He also felt overwhelming anxiety walking down the street where the attack
had occurred. Dr. B diagnosed the victim as suffering from PTSD and had used
a structured assessment tool to help make the diagnosis. On cross-examination,
she admitted that she had only seen three or four cases of PTSD in her 5 years
of practice and that the diagnosis was based entirely on the victim’s report of
his symptoms. Although she had not considered the possibility that the victim
was malingering, she considered it very unlikely. Because of his symptoms, she
concluded to a reasonable degree of psychological certainty that he was disabled
from working in his job as a middle manager for a utility company. On cross-
examination, she admitted that she did not know exactly what his job entailed
and had not determined how each of his symptoms might interfere with his
work—but she nonetheless believed that normal work performance was not pos-
sible given his condition.
E. Questions for Consideration
1. Should Dr. B be qualified as an expert with regard to the damages suffered
by the plaintiff?
2. To what extent should the following considerations affect the weight given
to Dr. B’s testimony:
a. Dr. B had been treating the plaintiff prior to the attack, and continued
to treat him afterward.
b. Dr. B has seen only three or four cases of PTSD in her practice.
c. Dr. B’s diagnosis was made on the basis of the patient’s self-report,
without corroboration from collateral informants, and she had not
considered the possibility that he might be malingering.
3. What information regarding the structured assessment tool that was used
in making the diagnosis of PTSD would be needed to determine whether
the results of the assessment should be admissible?
4. Was an appropriate evaluation done with regard to the extent of the vic-
tim’s work disability? If not, what additional information should have been
obtained and by what means? Should the testimony as offered have
been admissible?
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References on Mental Health Diagnosis and
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Kaplan and Sadock’s Comprehensive Textbook of Psychiatry (Benjamin J. Sadock
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Alan F. Schatzberg et al., Manual of Clinical Psychopharmacology (6th ed. 2007).
Stephen M. Stahl, Essential Psychopharmacology: The Prescriber’s Guide (3d ed.
2009).
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Paul S. Appelbaum, A Theory of Ethics for Forensic Psychiatry, 25 J. Am. Acad.
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the Law (4th ed. 2007).
Deborah Giorgi-Guarnieri et al., American Academy of Psychiatry and the Law Prac-
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Defense, 30 J. Am. Acad. Psychiatry L. S1 (2002).
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of Violence, in Modern Scientific Evidence: The Law and Science of Expert
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Retrospective Assessment of Mental States in Litigation: Predicting the Past (Rob-
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Richard Rogers, Clinical Assessment of Malingering and Deception (3d ed. 2008).
Christopher Slobogin, Proving the Unprovable: The Role of Law, Science, and
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Robert M. Wettstein, Treatment of Offenders with Mental Disorders (1998).
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