If psychiatry is often confusing and mysterious to the layperson, forensic psychiatry is even more confusing and mysterious -- even to psychiatrists. To allay some of this confusion and to demystify the subject, this overview attempts to briefly summarize some of the essentials of this fascinating field. This article is based on and condensed from a presentation at the 2001 U.S. Psychiatric & Mental Health Congress in Boston and is stimulated by the current rapid growth of interest and participation in forensic work (Berger, 1997; Gutheil, 1998; Melton et al., 1997). Forensic psychiatry embraces a host of functions, including civil, criminal, legislative, ethical, administrative, institutional and organizational issues; but here we focus on the role of expert witness in a civil or criminal case.
Forensic Psychiatry's Definitions of an Expert Witness
The American Academy of Psychiatry and the Law (AAPL), the national forensic psychiatric organization, defines forensic psychiatry as the application of psychiatric knowledge and skills to legal issues in legal contexts. Because expert work takes place in an adversary system, the subject can be heuristically explored in terms of various adversarial scenarios.
Expert witness versus clinical expertise. Most psychiatrists view themselves as having some expertise in the field, so why isn't everyone an expert witness? The answer here lies in the fact that expert witness is a role function, not a credential involving knowledge of a discipline such as psychiatry. While a fact witness may testify in court only on what was directly observed by the five senses, an expert witness is permitted by the court to draw conclusions from all data, even data not personally observed by that witness (e.g., hospital records). Expert witnesses are qualified (i.e., accepted by the court to give opinions and conclusions) by knowledge, training and experience to offer opinions on psychiatric issues in order to educate the court about matters not generally known to laypeople.
The fish out of water problem: treating versus testifying. Forensic work differs in several respects from clinical treatment. First, the goals of the expert are truth and justice rather than -- and, as noted below, sometimes in tension with -- the goals of alleviating patients' symptoms and protecting patient welfare. Because of various role incompatibilities, the treater should usually not serve as an expert (Schouten, 1993; Strasburger et al., 1997).
Second, the forensic role occurs in an adversary system where -- even if the expert is appointed by the judge -- the practitioner can usually count on one side being favorable and the other opposed to one's position. This adversarial climate stands in contrast to the alliance-based collaboration of the treatment team and setting.
In part, the adversary context explains why attorneys view the so-called "battle of the medical experts" as routine but the public finds it so dismaying. Naive spectators see the conflict between witnesses (which is necessary for a fair trial) as both anxiety-producing and somehow questioning of psychiatry's validity as a field (Gutheil, 1999).
Fundamentally, the expert witness' role resembles that of teacher: The expert teaches the retaining attorney about the psychiatry in a particular case and, in turn, may teach the jury in a comparable fashion. The most interesting aspect of this work is the challenge of translating information between psychiatry and law -- two fields with quite differing assumptions about the mind and the world -- to arrive at a psychiatric opinion applied to the legal issue. The challenge continues as the expert translates that translation into language accessible to a lay jury.
AAPL (1995), American Academy of Psychiatry and the Law Ethical Guidelines for the Practice of Forensic Psychiatry (revised). Available at: www.aapl.org/ethics.htm. Accessed Feb. 26, 2002.
Appelbaum PS (1990), The parable of the forensic psychiatrist: ethics and the problem of doing harm. Int J Law Psychiatry 13(4):249-259.
Berger SH (1997), Establishing a Forensic Psychiatric Practice: A Practical Guide. New York: W.W. Norton & Co. Inc.
Gutheil TG (1998), The Psychiatrist as Expert Witness. Washington, D.C.: American Psychiatric Press.
Gutheil TG (1999), A confusion of tongues: competence, insanity, psychiatry, and the law. Psychiatr Serv 50(6):767-773.
Melton GB, Petrila J, Poythress NG, Slobogin C, eds. (1997), Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers, 2nd ed. New York: Guilford Press.
Schouten R (1993), Pitfalls of clinical practice: the treating clinician as expert witness. Harv Rev Psychiatry 1(1):64-65.
Strasburger LH, Gutheil TG, Brodsky A (1997), On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Am J Psychiatry 154(4):448-456 [see comments].