Showing 9 posts in Expert Witness.
I often find myself in a case opposing a party who has designated his or her or a child's treating therapist as an expert witness on various forensic issues. This arrangement is rarely, if ever, a good idea. I understand the temptation to save money by hiring one person instead of two. However, a treating therapist who tries to serve as an expert forensic witness faces an ethical conflict that can completely undercut both roles.
The U.S. Department of Health and Human Services has published an excellent report about Trauma-Focused Cognitive Behavioral Therapy (TF-CBT). The treatment approach is one of the best evidence-based protocols for children who have been abused and non-offending parents. For litigators who encounter TF-CBT in a case, or face an opposing expert who doesn't use it, the report is an excellent resource.
A recent project led me to an interesting study in the Scandinavian Journal of Psychology looking at what factors influence the opinions of clinicians about whether child sexual abuse occurred in a given case. It should come as no surprise that the study found that even expert clinicians are human, with many unexamined biases.
What I did find disconcerting was the study's conclusion that the clinicians noticed leading questions, but not other suggestive techniques. The study included interviews that, in addition to leading questions, used (a) inducing stereotypes ("he is bad"), (b) statements that assume abuse ("don't be afraid to tell"); and (c) praise or criticism for certain disclosures from the child. Although experienced clinicians were more likely to note the leading questions, few of them noticed the other three suggestive techniques.
As the study's authors noted, this finding "is surprising as there is ample evidence that a number of suggestive interviewing techniques apart from leading questions may affect children's testimony in a negative way. This is an alarming finding because if the clinicians do not recognize such influences as harmful, it would not be possible for them to take steps to avoid such influences when interviewing children themselves."
The authors recommended more training about suggestive techniques and pre-existing beliefs, as well as (of course) more studies on the subject.
Thanks to World of Psychology, I found an excellent article by American Scholar on Dr. Aaron Beck, the founder of Cognitive Behavior Therapy. The article describes, not just Dr. Beck, but the early history of CBT. It's well worth reading.
I have been an enthusiastic supporter of CBT ever since I discovered it ten or so years ago. I like to think that my enthusiasm stems not from any bias caused by my legal cases, but from my time as a social worker in the early 80s. I spent a lot of time working with abused children and dysfunctional families, and became quite disenchanted with traditional psychoanalysis. It seemed to me to be analogous to using a treadmill instead of going on a hike -- the exercise might be good for you, but you always find yourself in the same place.
An article about a convicted child molester whose victim has recanted her testimony caught my eye last week. It wasn't the victim's change of heart that interested me. As a former prosecutor, I am familiar with that phenomenon. Sometimes witnesses think the sentence was too harsh, or they think that they have moved on and recant as a way of extending forgiveness. And sometimes they really did lie in the original trial. I don't know enough about this particular case to have an opinion on what really happened. But I have serious questions about this testimony, presented by the prosecution to challenge the recanting victim:
The prosecution made its case by presenting testimony from a psychologist who theorized that Julie suffered from "child sex abuse accommodation syndrome," one of whose key symptoms is denial. In short, the theory was that her recantation as an adult was a form of denial that she had been sexually abused or that her father did it. Under the theory, her new statement also represented an effort by her to restore a family relationship.
The problem is that CSAAS is not a diagnosis. No one can "suffer from" it. If the expert actually testified as the article describes, then he or she was woefully, even inexcusably, uninformed.
I recently have encountered litigation where a party has designated his or her or a child's therapist as an expert witness. This arrangement is rarely, if ever, a good idea. I understand the temptation to save money by hiring one person to serve two roles. But a therapist who tries to serve as an expert witness faces an ethical conflict that can completely undercut both roles.
The main difficulty is that a forensic witness must be objective, while a therapist's job is to support his or her client. To quote a leading expert, writing in The Evaluation of Child Sexual Abuse Allegations(a book that I highly recommend),
In a treatment relationship, even one directed by a court or conducted under the aegis of an agency, the therapist's primary loyalty should be clear: it is to the patient or client, rather than to the patient's family, a social agency or a court. . . . The neutrality and objectivity needed from a forensic examiner cannot be expected once the therapeutic alliance has been formed and the mental health professional has made a commitment to helping the client beyond simple protection.
None of the organizations that set standards will go so far as to completely forbid the practice. But all of them strongly discourage it. (Sources listed after the jump) At the very least, a treating therapist testifying as an expert should be able to quantify the "different responsibilities and tasks required of each role," as well as the "appropriate steps" he or she took "to guard against role conflict" and to "make sure that the client understands the nature and different responsibilities of each role." APSAC Practice Guidelines, Code of Ethics ¶ C2.
Legal blogs already are picking up on the study that I mentioned yesterday. The normally-solid Sexual Abuse Claims Blog quotes one report that "child abuse can permanently alter the way your genes fight stress, leaving victims of childhood abuse more vulnerable to stressful events throughout their life."
Let's all repeat one more time - the study looked at a grand total of 36 tissue samples. To quote a neurobiology professor, "The bottom line is that this is a terrific line of work, but there is a very long way to go either to understand the effects of early experience or the causes of mental disorders."
If you run across an expert who makes this claim about the results of childhood abuse, take a good look at the studies they are relying on. As one of my favorite literary characters said, "Wizards should know better."
One of the most controversial questions I encounter in litigation involving children is predicting the costs of future mental health treatment. Everyone agrees that children who have suffered a trauma need therapy, but few people agree on what sort of therapy or how much. The American Journal of Preventive Medicine recently published a study concluding that only cognitive behavior therapy (individual and group) has been proven to be effective. (Hat tip: Anxiety Insights blog).
Defense attorneys will like this study for the same reason that plaintiff's attorneys will be skeptical - cognitive behavior therapy requires only 8-12 sessions. It may need to be repeated periodically at developmental milestones, such as puberty, but it does not require long-term, ongoing therapy sessions.
Other therapies that I often see recommended, such as intensive psychoanalysis or psychotropic medication, are simply not yet proven. I have yet to see a Daubert challenge to such recommendations, but more studies like this one certainly would support one.
Experts long have considered sexualized behavior in children to be a strong indicator of sexual abuse. Some behavior (masturbation, exhibitionism) is part of the normal developmental process, but other behaviors seem to occur significantly more often in children who have been sexually abused.
But according to a study reported in Child Maltreatment, physical and emotional abuse may cause the same behavior. The researchers followed children at risk for physical or emotional abuse, but who had no reports of sexual abuse. They found that children who had suffered either physical or emotional abuse exhibited more sexualized behavior than non-abused children. "Findings suggest that maltreatment other than sexual abuse, and the developmental periods in which is occurs, may be linked to the development of sexualized behaviors."
The abstract (free) and full text (minimal charge) are available online.
Lawyers handling cases with claims of sexual abuse need to be aware whether the respective expert witnesses have investigated the possibility of emotional or physical abuse in a given case. It is one of those questions that need to be asked, if only to rule it out as a possible cause of the child's symptoms.
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