Ethical scholars of the forensic context have pointed out that the traditional doctor-patient relationship does not apply between the forensic examiner and the examinee (Appelbaum, 1990). Since the goals of forensics are truth and justice -- rather than medicine's traditional health and welfare -- the core ethical principle of "Primum non nocere" does not fit well. After all, the testimony of a physician may, in fact, lead to such harmful outcomes as monetary loss, incarceration and, in capital cases, death. In addition, traditional rules about confidentiality are altered in the more public arena of the courtroom (Gutheil, 1998). Hence, the forensic psychiatrist is not actually practicing traditional medicine in forensic work.
Instead, as outlined in the ethics code of the AAPL (1995), the core ethical principles followed by expert witnesses are honesty and striving for objectivity. Honesty underscores the importance of experts keeping within their expertise and the science of the field in presenting opinions; objectivity addresses the goal of freedom from bias that an expert strives to achieve by identifying and managing prejudices. The expert who, instead of "selling time" (i.e., receiving an hourly fee for an independent opinion), "sells testimony" (i.e., is willing, for a fee, to say whatever the attorney wants said) is called a hired gun or other, even less complimentary names. Like clinicians who engage in sexual misconduct, hired guns are the bane of their profession, casting a pall over ethical practitioners in the field.Types of Expert: Consulting Versus Testifying
All experts begin the relationship with the retaining attorney by serving as psychiatric consultants to the case at hand. The question, "What is the psychiatric dimension of this case?" is the primary issue. Experts may remain in that consultant role -- "behind the scenes," as it were -- to guide the attorney's understanding of the psychiatric aspects of the case or of the opposing expert's testimony. Alternatively, the expert might serve as a testifying expert. If the expert finds, after review of the entire database of the case, that the case has merit from the side of the retaining attorney, the expert may so state in a report to the court. Later, at the attorney's behest, the expert may proffer an expert opinion in sworn testimony at a deposition (i.e., oral examination under oath -- a part of discovery usually led by the opposing attorney) or in open court at a trial.
Part of the expert's challenge is to rise above the partisan position of consultation to one side of a case in an adversary context. In some cases, this challenge is made somewhat easier by the expert's appointment by the court itself, rather than by one side or the other.Concluding Thoughts and Summary
While so brief an overview can only sketch the outlines of the field, it should be clear that the role of expert witness offers many interesting challenges, beginning with the need to shift from the clinical role of making patients better into the foreign setting of forensic work, serving truth and justice (Appelbaum, 1990; Gutheil, 1998). Functioning primarily as a teacher, the expert aids both the attorney and the jury in understanding vital psychiatric aspects of the case. Fascinating and difficult but rewarding, the role of expert psychiatric witness offers new perspectives on the legal system in society.