Forensic Reports and Testimony: A Guide to Effective Communication for Psychologists and Psychiatrists

Contents

Foreword

Preface

About the Authors

Chapter 1: Introduction

Overview

Organization of the Volume

The Importance of Knowing Local Laws, Rules, and Customs

Report Writing and Testimony in Context

Points and Avenues of Communication in the Litigation Process

Chapter 2: Functions of Forensic Reports

Distinguishing Forensic and Therapeutic Reports

Forensic Report Functions

Notes

Chapter 3: Content of Forensic Reports

Understanding and Identifying the Referral Question

Addressing Only the Referral Question

Documenting All Sources of Information

Documenting All Requested Data Sources

Identifying the Source(s) of Reported Facts

Problematic Referencing of Data Sources

Appropriate Referencing of Data Sources

Including Relevant Information and Excluding Irrelevant Information

From Report Content to Report Quality

Practical Implications

Chapter 4: Principles of Forensic Reports

Providing the Factual Bases for Opinions

Distinguishing Facts, Inferences, and Opinions

Inference or Opinion Followed by Supporting Facts

Facts Followed by Inference or Opinion

Identifying Presumptions and Assumptions

Limiting Opinions to Expert Opinions

Minimizing and Explaining Jargon

Jargon

Jargon with Explanation

Jargon

Jargon with Explanation

Jargon

Jargon with Explanation

Avoiding Inappropriate Use of Absolute Terminology

Avoiding Problematic Language

Using Quotes Effectively

Description of Thought Process

Description of Thought Process Accompanied by a Quotation

Editing or Otherwise Changing Completed Reports

Final Comment: Persuading the Reader in a Meaningful Way

Notes

Chapter 5: Structure of Forensic Reports

Report Structure

Report Elements

Too Ambiguous

More Specific

Too Ambiguous

More Specific

Inadequate Documentation

Inadequate Documentation

Thorough Documentation

Miscellaneous Matters

Notes

Chapter 6: Interrogatories, Affidavits, Declarations, Demonstrative Exhibits, and Demonstrative Aids

Interrogatories

Affidavits

Declarations

Demonstrative Exhibits and Demonstrative Aids

Chapter 7: Conceptual Issues Regarding Testimony

Components of Effective Testimony

General Principles Applicable to Direct Examination and Cross-Examination

Developing Direct Examination and Cross-Examination Skills Outside of the Courtroom

Final Words of Caution

Chapter 8: Testifying at Depositions

Purposes of Depositions

Participating in Depositions

Chapter 9: Testifying in Admissibility Hearings

Legal History

Outcomes of Challenges to Expert Testimony

Responding to Frye and Daubert Challenges

Chapter 10: Pretrial Preparation

Meeting with Retaining Counsel

Considering and Commenting on the Work and Findings of Other Experts

Providing Information about Other Experts to Retaining Counsel

At the Courthouse

Waiting to Be Called to Testify

The Trial Process

Notes

Chapter 11: Direct Examination

Establishing Expert Status: Qualification

Describing One’s Involvement in the Case

Describing Information Sources and the Bases for Opinions

Communicating One’s Findings and Opinions

Identifying the Limitations of One’s Techniques and Findings

Communicating Confidence and Certainty

Testifying to a Reasonable Medical, Psychiatric, or Psychological Certainty

Commenting on the Work and Opinions of Other Professionals

Notes

Chapter 12: Cross-Examination

Responding to Challenges to Qualifications or Technique

Responding to General Aspersions

Responding to Insinuations of Bias

Responding to Attempts to Impeach

Responding to Specific Types of Questions

Maintaining Composure

When It Is All Over

Notes

Appendix A: Sample Reports

Appendix B: Sample Affidavits and Declaration

References

Author Index

Subject Index

End User License Agreement

List of Illustrations

Figure 9.1 Hierarchical Ordering of Daubert Criteria and Separation by Direct Versus Indirect Evidence

Figure 11.1

List of Tables

Table 2.1 Distinguishing Between Reports Summarizing Therapeutic and Forensic Evaluations

Table 4.1 Problematic Use of Absolute Terminology

Table 4.2 Problematic Word Usage and Better Alternatives

Table 10.1 Appropriateness of Information Disclosure

Table 10.2 The Trial Process

Forensic Reports and Testimony

A GUIDE TO EFFECTIVE COMMUNICATION FOR PSYCHOLOGISTS AND PSYCHIATRISTS

RANDY K. OTTO

RICHART L. DeMIER

MARCUS T. BOCCACCINI

Cover design: © iStockphoto/Orchidpoet

Cover image: Wiley

Copyright © 2014 by John Wiley & Sons, Inc. All rights reserved.

Published by John Wiley & Sons, Inc., Hoboken, New Jersey.

Published simultaneously in Canada.

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the Publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, fax (978) 646-8600, or on the web at www.copyright.com. Requests to the Publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, (201) 748-6011, fax (201) 748-6008.

Limit of Liability/Disclaimer of Warranty: While the publisher and author have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for your situation. You should consult with a professional where appropriate. Neither the publisher nor author shall be liable for any loss of profit or any other commercial damages, including but not limited to special, incidental, consequential, or other damages.

This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering professional services. If legal, accounting, medical, psychological or any other expert assistance is required, the services of a competent professional person should be sought.

Designations used by companies to distinguish their products are often claimed as trademarks. In all instances where John Wiley & Sons, Inc. is aware of a claim, the product names appear in initial capital or all capital letters. Readers, however, should contact the appropriate companies for more complete information regarding trademarks and registration.

For general information on our other products and services please contact our Customer Care Department within the United States at (800) 762-2974, outside the United States at (317) 572-3993 or fax (317) 572-4002.

Wiley publishes in a variety of print and electronic formats and by print-on-demand. Some material included with standard print versions of this book may not be included in e-books or in print-on-demand. If this book refers to media such as a CD or DVD that is not included in the version you purchased, you may download this material at http://booksupport.wiley.com. For more information about Wiley products, visit www.wiley.com.

Library of Congress Cataloging-in-Publication Data:

Otto, Randy K.

Forensic reports and testimony : a guide to effective communication for psychologists and psychiatrists / Randy K. Otto, Richart L. DeMier, Marcus T. Boccaccini.

1 online resource.

Includes bibliographical references and index.

ISBN 978-1-118-13672-0 (hb); ISBN 978-1-118-41904-5 (ebk); ISBN 978-1-118-42094-2 (ebk) — 1. Forensic psychology. I. DeMier, Richart L., 1962- II. Boccaccini, Marcus T. III. Title.

RA1148

614’.15—dc23

2014014872

Foreword

I love to write, so I like doing forensic reports. I would not care to do forensic evaluations if they did not conclude with a written product, because I could not complete the evaluation. Writing does not merely describe the outcome. It creates it. Yes, some evaluators can muse on the data for awhile and arrive at their opinions about the forensic question. Typically, though, I do not discover my interpretations until I write. Creating visible words is part of finding the logic that flows from data to conclusion, that Sherlock-solving-the-case process that forensic examiners enjoy. Writing drives that process and eventually expresses the result.

Writing also reveals the weak points in a conclusion. Put your first draft aside and read it the next day, pretending you are the opposing attorney searching for every flaw, every logical alternative argument, any data that contradict your conclusions. When you find them, rethink and revise, then revise again to get the communication right. When I have crafted a good report, I feel the artist’s satisfaction after having created a painting or carved a sculpture.

Expert testimony is another matter. The only part of testifying that I enjoy is nodding to the judge, standing down from the witness box, and walking out the door. If writing a forensic report is like working on a painting in your loft, the expert witness is a sidewalk chalk artist in a bad neighborhood, caught in the crossfire between two rival gangs. Technique is difficult to achieve when you’re dodging bullets. And after an overnight rain, you’ve got nothing tangible to show for your effort. Okay, there’s a transcript of court proceedings. But it faithfully memorializes the one or two stupid things you said, which is all you’ll remember and can’t be fixed. Despite all this, I admit that sometimes I’ve found the expert witness role rewarding, but I’d still rather write.

This book is unusual in that it provides guidance for both written and oral communication in our line of work. It captures and dissects all of the basic elements of the art of forensic report writing and the tactics of testimony. I once did a study of the 10 most common errors in forensic report writing, and I can verify that this book tackles all of them.1 Some of the elements are easy to grasp, whereas others are complex. Yet the authors describe them economically and clearly, thus demonstrating one of the most important virtues they want to teach us: The best writers always opt for simplicity. One day I will find the right words, said Jack Kerouac, and they will be simple.2 Avoid anything unnecessary, observes Stephen King. The road to hell is paved with adverbs.3 And they ask for absolute clarity: All you have to do is write one true sentence. Write the truest sentence that you know,4 said Ernest Hemingway. The authors of this book teach us to do that, and they do it while they are teaching us.

Hemingway also said this: There is nothing to writing. All you do is sit down at a typewriter and bleed.5 If you find report writing easy, you probably need to read this book and compare your reports to its recommendations. Applying its guidance, you may find the next few reports are more difficult, because the effort requires a step up from simply filling the page with words. But with practice, these basics become second nature and pay off in many ways. You will produce higher-quality reports in less time, increase your credibility as a forensic clinician whom lawyers want to consult, and enjoy the satisfaction of having done your best. You may still bleed from time to time, especially when it’s a stubborn case or the fourth report you’ve written this week. If you’ve learned what this book teaches, though, you’ll recover quickly.

The authors faced a difficult challenge when writing this book. How do you offer guidance for the range of circumstances that forensic examiners face? I have reviewed about 1,500 forensic reports in my career. Some were produced by my postdoctoral students who came from various graduate training programs, others by forensic clinicians in states to which I consulted, and a large number by advanced forensic practitioners throughout the United States who were applying for forensic specialization by the American Board of Forensic Psychology. Seeing this diversity, I’m aware of the wide range of circumstances in which we perform our evaluations, write our reports, and testify: the adult NGRI murder and the juvenile delinquency disposition, the high-stakes and high-publicity case of the year and the third CST case of the week, competence to be executed, and capacities to have custody of one’s child. Then we face jurisdictional differences in statutory requirements and administrative regulations for forensic reports. Sometimes we even write our reports or testify differently depending on which of the local judges is hearing the case.

Wisely, the authors did not try to demonstrate how to write reports or testify in all of these specific circumstances. Instead, they used their familiarity with the domain of forensic tasks to identify the basic elements—the common nails that can be used to build a thousand different things made of many kinds of wood. Once you learn to drive the nail straight, experience teaches you how to adapt that skill to the varied circumstances you encounter.

After you’ve read this book, you might try focusing on just a few of the techniques at a time. Read a couple of the principles and apply them to some of your upcoming reports or your courtroom testimony. Then, read a few more techniques and work on them. Find a way to read other examiners’ reports or watch their testimony. Serious writers read a lot. They look for things that they admire and might want to emulate sometime, and they find examples of style or content that they want to avoid. Then, if you really want to learn, look for an opportunity to teach someone. Don’t wait until you believe you might be a guru. When you have a handle on the basic principles in this book, you’re qualified to pass them on. Doing so, you come to own them.

Enjoy this book. It has some great laughs, and it captures the essence of the craft and art of communicating your work. Without effective communication, you didn’t do a forensic evaluation.

Thomas Grisso, Ph.D.

Director of the Law-Psychiatry Program

University of Massachusetts Medical School

Notes

1Thomas Grisso, Guidance for improving forensic reports: A review of common errors, February 2010 (Open Access Journal of Forensic Psychology).

2Jack Kerouac, The Dharma bums, 1958 (Viking Press).

3Stephen King, On writing: A memoir of the craft, 2000 (Scribner).

4Ernest Hemingway, A moveable feast, 1964 (Scribner).

5William Knott, The world of fiction, 1973 (Reston Publishing Co.).

Preface

This book has been a long time coming. It is the product of our varied experiences as psychologists. For the past 25 years, one of us (RKO) has been a faculty member at the University of South Florida and operated an independent practice largely limited to forensic psychological evaluation. Another (RLD) has worked at the U.S. Medical Center for Federal Prisoners, conducting criminal forensic evaluations and supervising predoctoral and postdoctoral trainees; for 11 years he managed the institution’s APA-accredited clinical psychology internship. Another (MTB) has served as a faculty member at Sam Houston State University’s APA-accredited doctoral program in clinical psychology, training graduate students and developing a program of research focused on clinical-forensic psychological assessment.

The careful reader will notice that we are not psychiatrists (although some of our best friends are). Nonetheless, we titled this book Forensic Reports and Testimony: A Guide to Effective Communication for Psychologists and Psychiatrists. We did this for three reasons: (1) Regardless of the unique perspectives that psychologists and psychiatrists might bring to forensic mental health evaluation, most of what psychologists and psychiatrists do is more similar than different; (2) a review of the text and reference list makes clear that we considered and relied on the good work of many of our medical colleagues; and (3) we thought it might have a greater impact if we wrote a volume that was relevant to a larger audience. We hope this explanation suffices for any who take offense.

The reader need not be a careful one to notice that we are also not English or Communications professors. However, this book is about written and oral communication rather than the forensic assessment process. The best psychological or psychiatric evaluations will be of little use to courts, attorneys, or others if the findings are not communicated clearly, precisely, and understandably. We have seen far too many reports that failed to capture and preserve the competent evaluations that formed their foundations. We recognize that the psychological or psychiatric report endures long after the clinician has left the scene; therefore, we chose to focus on the process of writing accurate and defensible reports. Similarly, we have read too many good reports written by our colleagues, only to see their excellent observations and keen insights go unnoticed by the judges or juries they were trying to educate because of their failure to testify in an understandable and engaging way about what they did.

Careful and casual readers alike will quickly realize that we also should not quit our day jobs and seek careers in comedy. And, we all agree with Otto’s Law of Testimony: None of us are as funny as we think we are. However, in our attempt to make the book engaging and enjoyable to read, we sometimes were able to reach agreement that something we wrote approached humor, and we included it in the book as a result.

This book focuses on effectively communicating the results of a forensic evaluation. All that we included assumes that a mental health professional conducted a quality forensic evaluation. After all, even the most artfully drafted report or most eloquently crafted testimony cannot overcome a poor evaluation. More frequently than we would like, the blistering cross-examinations of mental health professionals who have conducted forensic evaluations are justified given the shoddy product that they delivered. This book includes no pointers about how to write a report after conducting a substandard examination, or how to respond to cross-examination questions that effectively demonstrate to the judge or jury the inadequacy of the mental health professional’s assessment approach.

Nor does this book necessarily provide cross-examination questions and strategies that effectively demonstrate to the legal decision maker the limitations of the forensic examiner’s work (although we are all for such questions and strategies). Although we did write this book with attorneys in mind (because they are the ones who hire, examine, and cross-examine forensic examiners), they are not our intended audience. Nonetheless, attorneys might find our commentary helpful as they seek to understand what should be in reports and how testimony can be most persuasive. Attorneys looking for effective cross-examination strategies and gambits, however, should look elsewhere (see, e.g., Ziskin & Faust, 2012; Faust, 2012; Faust & Ahern, 2012).

Consistent with Guideline 1.02 of the Specialty Guidelines for Forensic Psychology (American Psychological Association, 2013; hereinafter APA, 2013) and Section IV of the Ethics Guidelines for the Practice of Forensic Psychiatry (American Academy of Psychiatry and the Law, 2005), we believe that mental health professionals who serve as experts to the courts must be objective, independent, and unbiased, and they should seek to help everyone involved—not just the retaining attorney. The practices we recommend are designed to do just that. We went to great efforts to avoid suggesting actions that essentially constitute the shenanigans in which the attorneys who hire us sometimes engage, or the gamesmanship that is recommended by some of our peers in other publications. Consequently, experts reading this may come across attorneys who do not want them to do some of what we recommend (we have come across some of them ourselves). We understand this tension and attribute it to the differing responsibilities of forensic examiners and those who hire them.

It should be no surprise to readers that it is sometimes difficult to get three psychologists (or psychiatrists) to agree to something—even three psychologists whose perspectives are similar enough to co-author a book. When we discovered these disagreements, we attempted to resolve them and find common ground. When we could not, we offered our different perspectives and underlying rationales, and left it for the reader to decide. Similarly, we sometimes came across issues about which none of us held a strong opinion and saw several approaches as acceptable. In these cases we tried to make that clear and identify what we considered to be reasonable approaches, as well as the advantages and disadvantages associated with each strategy.

The large majority of our examples are taken directly from real-world reports, transcripts, and experiences, most of which we collected ourselves, but some of which were shared with us by very generous colleagues. In some cases, however, reports or transcripts were not available, so we did our best to recreate what we observed at some distant time in the past. Whenever we did excerpt case reports or transcripts, or discuss our experiences, in the spirit of Standard 4.07 of the Ethical Principles of Psychologists and the Code of Conduct (American Psychological Association, 2010; hereinafter APA, 2010), we went to great lengths to disguise the identities of the examinee, examiner, and anyone else who might have been involved.

All of us acknowledge that we have never written the perfect report or offered perfect testimony, but we each hope to keep getting better, and that is what this book is about. Finally, all of the perspectives, opinions, recommendations, and errors in this volume (as-of-yet undiscovered, but undoubtedly there) are ours. However, we want to acknowledge that what we provide in this book has been shaped by our experiences, along with the insights and support of many valued professors, colleagues, and trainees. We want to specifically acknowledge Stan Brodsky, Mary Alice Conroy, Dave Corey, Bob Denney, Joel Dvoskin, John Edens, Bill Foote, Rick Frederick, Tom Grisso, David Martindale, Dave Mrad, Daniel Murrie, Christina Pietz, Norm Poythress, and Chris Slobogin.

RKO

RLD

MTB

About the Authors

Randy K. Otto, Ph.D., ABPP

Dr. Otto is a faculty member in the Department of Mental Health Law and Policy at the University of South Florida, and he is an adjunct professor at Stetson University College of Law. Dr. Otto’s research and teaching focuses on forensic psychological assessment; he serves on the editorial boards of several journals; and he edited two recently published books on forensic psychology.

Dr. Otto is a fellow of the American Psychological Association (APA Division 41) and is the 2008 recipient of the American Academy of Forensic Psychology’s Award for Distinguished Contributions to Forensic Psychology. He is board certified in forensic psychology and clinical psychology by the American Board of Professional Psychology, and he has a practice that is limited to forensic psychological evaluation.

Dr. Otto has served as President of the American Board of Forensic Psychology and the American Psychology-Law Society, and he is President of the American Board of Professional Psychology. He chaired the committee that revised the APA’s Specialty Guidelines for Forensic Psychology, and he is a member of the American Bar Association committee that is revising that organization’s Criminal Justice Mental Health Standards, which direct how persons with mental disabilities should be managed in the criminal justice system.

When not at work or with his family, Dr. Otto can probably be found on a motorcycle or at a poker table.

Richart L. DeMier, Ph.D., ABPP

In 1995, Dr. DeMier completed a postdoctoral fellowship in forensic psychology at the U.S. Medical Center for Federal Prisoners, in Springfield, Missouri. Following the fellowship, he joined the staff at that facility, where he conducts forensic evaluations in response to referrals from federal courts. The most common questions involve competency, restoration of competency, sanity, and risk to others. He also evaluates sentenced prisoners to determine whether civil commitment to inpatient mental health treatment is indicated. In 2002, he became the Director of Clinical Training at the U.S. Medical Center, providing leadership for the facility’s APA-accredited predoctoral internship, a position he held for 11 years.

Dr. DeMier is board certified in forensic psychology by the American Board of Professional Psychology. For several years, he has reviewed practice samples of individuals who have applied for board certification and served as an oral examiner at the final stage of the board certification process. He is a regular presenter at workshops of the American Academy of Forensic Psychology; he offers workshops focused on forensic report writing and preparation for board certification. Although he is not an avid researcher, he has written about several forensic topics, including forensic report writing, competency, competency restoration treatment, and ethics.

His interests outside of work include spending time with the family, reading history, and following the St. Louis Cardinals and Green Bay Packers.

Marcus T. Boccaccini, Ph.D.

Dr. Boccaccini is a Professor of Psychology at Sam Houston State University, where he also serves as the Associate Director of Clinical Training for the department’s clinical psychology Ph.D. program. He has published more than 70 articles relating to forensic psychology. His research program focuses broadly on issues relating to forensic assessment, with an emphasis on identifying, understanding, and working to reduce measurement error and disagreement among forensic evaluators. Dr. Boccaccini’s research on evaluator bias and adversarial allegiance in risk measure scoring has recently been funded by the National Science Foundation.

When not at work or with his family—well, he’s pretty much always at work or with his family.

Chapter 1

Introduction

Overview

Although it has not always been the case, psychologists, psychiatrists, and other mental health professionals seeking guidance on how to conduct forensic evaluations now have an abundance of published resources available to them (see, e.g., Drogin, Datillio, Sadoff, & Gutheil, 2011; Jackson, 2008; Melton et al., 2007; Otto, 2013; Weiner & Otto, 2014), and continuing education opportunities abound as well (see, e.g., workshops referenced at www.aafp.ws). Quite rightly, the bulk of these resources focus on the legal contours, ethical challenges, and evaluation procedures and practices relevant to conducting forensic mental health assessments. Considerably less attention has been devoted to how forensic mental health professionals can best communicate to legal decision makers what they have done, learned, and concluded.

Some commentators have discussed strategies for educating legal decision makers by way of sworn testimony (see, e.g., Brodsky, 1991, 1999, 2013; Hess, 2006; Kambam & Benedek, 2010; Kwartner & Boccaccini, 2008; Otto, Kaye, & Hess, 2014) or the challenges of report writing in forensic contexts (see., e.g., Buchanan & Norko, 2011; DeMier, 2013; Gagliardi & Miller, 2008; Greenfield & Gottschalk, 2009; Kambam & Benedek, 2010; Karson & Nadkarni, 2013; Weiner, 2014). But these authors typically treat report writing and testimony individually or, at best, separately. We view report writing and testimony as inherently interconnected insofar as both are mechanisms for communicating one’s work and findings to decision makers.

This volume is devoted to effective report writing and testimony designed to communicate the work and opinions of psychologists, psychiatrists, and other mental health professionals who conduct forensic evaluations. If the examining mental health professional cannot effectively communicate what he or she did (i.e., the techniques employed, the records reviewed), learned (i.e., important data that were provided, uncovered, or generated), and concluded (i.e., expert opinions formed) by way of reports, affidavits, or testimony, then it does not matter how qualified he or she is, or how good the evaluation was. The expert will not educate or persuade the attorneys or decision maker(s). Accordingly, the purpose of this book is to convey principles of effective report writing, affidavit preparation, and testimony. We do not discuss how to conduct various types of forensic mental health evaluations. There are now plenty of resources that provide such guidance. We acknowledge, however, that we sometimes encroach upon this issue as we discuss how to communicate with the legal decision maker. We also do not specifically discuss presentation of social framework or social authority testimony (Monahan & Walker, 1987), which is non-case-specific testimony about research that sheds light on some matter before the court (e.g., general testimony about eyewitness identification, juveniles’ development, or the suggestibility of children when being questioned). We believe, however, that some of our comments may be helpful to witnesses who find themselves in court to share this type of information.

Organization of the Volume

We begin with a discussion of the functions of forensic reports in Chapter Two. We discuss the rationales for writing reports and how report requirements may be shaped by law and local customs. In Chapters Three and Four we discuss the content of forensic reports, with special attention to the underlying principles of sound report writing. Consideration of these principles—particularly when they can be anchored in relevant laws, rules, ethical precepts, or professional guidelines—provides an idea of what the standard of care should be. Chapter Five focuses on the structure, mechanics, and logistics of report writing, including a discussion of how to present data and opinions in the various sections of forensic reports. Chapter Six features a discussion of how to develop other forms of written communication, including interrogatories, affidavits, declarations, demonstrative exhibits, and demonstrative aids. Historically, these activities have received little attention from commentators compared to report writing and testifying. However, they all are common and important vehicles for communicating one’s work as an expert.

We then turn our attention to testimony. In Chapter Seven, we review the 4 Cs of effective communication: credibility, clarity, clinical knowledge, and certainty. These provide the backdrop for our discussion of more specific principles and practices. Chapters Eight and Nine are devoted to testimony in a variety of pretrial proceedings. Chapter Ten then focuses on how to prepare for court and various logistical issues, ranging from meeting with retaining counsel to pretrial reconnaissance. Chapter Eleven is concerned with direct examination techniques and strategies, and Chapter Twelve addresses the special challenges of cross-examination. Two appendices are included: Appendix A contains sample reports, and Appendix B contains sample affidavits and a sample declaration. Documents in the appendices are accompanied by commentary designed to demonstrate and reinforce some of the principles emphasized in this book.

Whenever possible, we anchor our recommendations in relevant research, laws, rules, ethics, or practice guidelines. When such authority is not available, we provide what we think are reasonable explanations or justifications for our perspectives. We also review findings from relevant research studies, when available, to help evaluators better understand how their reports and testimony may be received by others.

RESEARCH POINTS: REPORT WRITING AND TESTIMONY RESEARCH

In 1954, Judge David Bazelon issued a ruling in the landmark case Durham v. United States. That decision redefined the federal standard for insanity. The change reflected Bazelon’s desire for the increased participation of mental health professionals in courtroom proceedings (Bazelon, 1974). In the intervening 60 years, mental health professionals have written millions of reports summarizing their evaluations of litigants (Melton et al., 2007) and testified in millions of cases. It is therefore rather surprising that so little research has focused on the task of report writing. Forensic report writing has a scant literature, given its prevalence in today’s legal system.

Report writing and expert testimony describing forensic evaluations are not tasks that lend themselves easily to experimental manipulation. Instead, researchers are forced to study reports and testimony after the fact. For example, the professional literature comprises several types of articles about forensic reports and how to write them. Some of the first articles were conceptually driven pieces that focused on flaws inherent in the reports summarizing forensic evaluations. Other publications were mildly empirical, insofar as they at least counted some things or surveyed mental health professionals about their report writing ideas and practices. Naturally, these studies vary considerably in quality. Although few studies employed a rigorous empirical analysis of the quality of forensic writing, there are some notable exceptions (e.g., Skeem, Golding, Cohn, & Berge, 1998).

Heilbrun and Collins (1995) identified a period of 25 years in the absence of virtually any published empirical data on the characteristics of forensic mental health assessments (p. 61). Only 10 years later, however, Wettstein (2005) noted that topics in published research included contents of actual forensic reports, desired contents of forensic reports, perceived deficiencies of reports and evaluations, and prevalence of the use of diagnostic tests (p. 161). Of course, this difference could reflect different thresholds for considering a work empirical.

Although there has been some research examining the report-writing practices of mental health professionals who conduct forensic examinations, there has been even less research addressing the testimony they deliver in courts. This is presumably because of the difficulty in accessing an adequate number of transcripts documenting this testimony. This has led testimony researchers to rely on mock jury designs for identifying characteristics of credible experts and persuasive courtroom testimony. Research participants in these studies assume the role of jurors and make decisions in hypothetical cases. There are now more than 60 of these investigations, many of which provide useful information about effective courtroom communication (Kwartner & Boccaccini, 2008). Findings from these studies become even more compelling when coupled with postverdict surveys of jurors who heard testimony from experts in real cases (e.g., Boccaccini, Turner, Murrie, Henderson, & Chevalier, 2013).

The empirical literature on report writing and testimony has increased steadily since forensic psychology and forensic psychiatry have grown as recognized specialties, which is encouraging. Throughout this volume, we reference the work of researchers who have employed a variety of approaches to critically analyze forensic reports and testimony. This research is important because it provides some indication of the standard of practice, as well as an understanding of what practitioners are doing well and what they could do better.

The Importance of Knowing Local Laws, Rules, and Customs

Forensic mental health professionals with even a modicum of experience know that the laws and rules that shape their work vary across and within jurisdictions. Referencing the relevant laws and rules for all jurisdictions in all circumstances is not feasible in this book. When making points about rules of evidence, we typically reference the Federal Rules of Evidence, versions of which have been adopted by many states. It is important, however, that readers consider the contents of this book with the understanding that they must know and comply with the laws, rules, and customs of the jurisdictions in which they practice, and meet professional ethical obligations as well. In some instances, the laws or rules of a particular jurisdiction are referenced in order to make a specific point.

Also, remember that there is no substitute for good judgment. Although we are sometimes quite adamant about the best course of action, circumstances do vary; forensic mental health professionals should never leave their own good judgment at the examining room door or courthouse steps.

Report Writing and Testimony in Context

Before discussing report writing and testimony, it is important to understand the contexts in which mental health professionals write reports and testify. There is a subset of legal cases in which there is some question or dispute about someone’s emotional, behavioral, or cognitive functioning. Although the person whose mental state is at issue is typically a litigant, this is not always the case. For example, a witness may be examined when questions are raised about her capacity to testify, and the mental state of a testator at the time he executed a will may be the focus of a legal dispute between his heirs long after his death.

In these cases, attorneys or the court sometimes seek the assistance of mental health professionals. This consultation is based on the assumption that, because of their specialized knowledge, psychologists and psychiatrists may be able to help the fact finder understand the complicated matters involved and reach more informed, and presumably more accurate, decisions. The expert’s role is perhaps most clearly reflected in Federal Rule of Evidence 702:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

So this is where we start, with a mental health professional who has relevant specialized knowledge having examined someone whose mental state is at issue in a legal proceeding using valid assessment methods, who wants to effectively communicate what was done, considered, learned, and concluded. In this way, the legal decision maker will come to understand the complicated matters and make a more informed and presumably more accurate decision.

Points and Avenues of Communication in the Litigation Process

Once the evaluation has been conducted, there are numerous points at which the examiner will communicate his or her activities, findings, observations, and opinions. Assuming the examiner has been retained by an attorney to conduct the evaluation (typically the attorney representing the examinee or opposing counsel), it is critical that the examiner share his or her findings with the retaining attorney upon completing the examination. This allows the attorney to make informed decisions about the next steps in the legal process (e.g., seek a settlement or plea agreement, direct that an affidavit be executed, direct that a report be written, disclose the expert as a witness and make plans for trial, consider retaining one or more additional experts, seek necessary additional information). If the examiner has not been retained by an attorney but has some other type of involvement (e.g., court retention), then such contact is not appropriate; the next step for the examiner is likely provided in the document by which the appointment occurred (e.g., in the order appointing the professional to conduct the evaluation).

The retaining attorney may disclose the expert as a witness and direct him or her to execute an affidavit. As described in Chapter Six, affidavits are sworn statements in which experts typically chronicle their background, expertise, work in the case, and opinions. The retaining attorney may disclose the expert as a witness and direct him or her to write a report summarizing his or her work in the case and opinions (although the Federal Rules of Civil Procedure impose additional requirements of the expert when writing a report; see Chapter Two for more details).

Once notified of the expert’s involvement, opposing counsel may serve the expert with interrogatories. As described in Chapter Six, an interrogatory contains a list of written questions developed by a party that must be answered under oath by an adversary witness in order to clarify and identify facts that may be presented at trial.

The expert may also be deposed. As described in Chapter Eight, a deposition involves sworn testimony, the focus of which is typically the expert’s background and work in the case. Although testifying at a deposition is similar to testifying at a trial or hearing insofar as both involve sworn testimony, there are some important differences. Most importantly, depositions are typically taken by the nonretaining attorney. After all, all the retaining attorney needs to do in order to ascertain what his or her expert did or concluded is make a phone call. In cases in which the expert is retained or appointed by the court, the