Science and Psychiatric and Psychological Evidence

AuthorAlan D. Gold
Chapter 6
Science and Psychiatric and
Psychological Evidence
   evidence is oen given by an expert wit-
ness rega rding abnorma l mental conditions that have an i mpact on an acc used’s
criminal responsibility —either by negating it entirely or in part by denying a
requisite mental state. Such evidence is viewed as “necessary” for the trier of
fact within the requirements of the Mohan rule for the admissibility of expert
evidence, and, as set out in chapter , its legal relevance (i.e., its reliability and
probative value) is oen not disputed.
Critics say that this area of expert evidence is a prime example of “survival
by precedent” because psychiatry’s claimed abil ity to understand human psych-
ic diculties is not based in science. Even before Daubert and recent concern s
See, for example, Peter Shea , Psychiatry in Court: e Use( fulness) of Psychiatric Re ports
and Psychiatric Ev idence in Court Proceedings , d ed., e Institute of Crimi nology
Monograph Series (Anna ndale, NSW: Hawkins Press, Div ision of the Federation Press,
). is psychiatrist/author ha s described accuratel y and honestly the limitat ions of
psychiatric evidence in cou rt. e section “e Lang uage of Psychiatry” i ncludes subsec-
tions on Psychopathy (“decided advanta ge to both psychiatry and the law i f the clinical
concept could be put to one side and excluded from lega l debate until a great deal more
research is done”); Post-traumatic Stress Disorder (reects the A merican “penchant for
elevating human problems into psych iatric disorders,” quoting a journali st), as well as
Schizophrenia a nd the Depressive Disorders. e Major Schools of Psych iatry are out-
lined, as wel l as a succinct discus sion of the two main classi cation schemes (nosology) of
psychiatric disorders, t he ICD- (International Statistical Classicat ion of Diseases and
Related Health Problems, World Health Org anization) and the DSM-IV (Diagn ostic and
Statistical Manual of Mental Disorders). “Dangerousness” includes subsections entitled
    
about the quality of expert evidence, an excellent reference text by Jay Ziskin
on psychiatric and psychological testimony began with the following: “It is the
aim of this book to demonstrate that despite the ever increasing utilization of
psychiatric and psychological evidence in the legal process, such evidence fre-
quently does not meet reasonable criteria of admissibility and, if admitted,
should be given little or no weight.”e Ziskin text contains exhaustive and
scientically literate chapters whose titles point to scientic diculties with
psychiatry and psychology:
e Bases of Exp ert Testi mony: e Dubious Status of Psychiatrists and
Science and the Scientic Method
Ba se R ate s, “ Bar num ” E ect , I llu sor y Co rrel ati on a nd D oubl e St and ard s
of Evidence
Challenging eories and Principles
Challenging Principles of Diagnosis (DSM-III)
Challenging the Clin ical Examination
Challenging Psychological Tests
“e Concept of Dangerousne ss,” “e Relationship between Menta l Disorder and Dan-
gerousness,” and “e Pred iction of Dangerousness” and remi nds (at ) that “psychi-
atrists are oen ca lled upon to make judgments on . . . futu re dangerousness . . . and yet . . .
their track record in predic ting dangerousness is genera lly rather poor.”
Julio Arboleda-Florez & Ch ristine J. Deynaka , Forensic Psychiatric Ev idence (To-
ronto: Butterworths, ) is an excellent attempt to consider ps ychiatric evidence from a
scientic perspective. But u ltimately it claims psychiatr y to be a science as well as an “art .”
Even a passing fami liarity with David Rosen han’s famous study “Being Sane in I nsane
Places” must inevitably ra ise serious questions about the real va lidity of psychiatric d iagno-
ses: see Neil Vidmar, “Eva luating Expert Scienti c Evidence” ( November ), ADGN/
RP- at paras. – (on uickl aw in Commentary) for an excellent summa ry.
Jay Ziskin, Coping with Psychiatri c and Psychological Testimony, d ed.,  vols. (Venice,
CA: Law and Psycholog y Press, ).
Ziskin, ibid., vol.  at vii.  is two-volume work then goes on to provide excellent in for-
mation and ammunition to demol ish virtually a ny psychiatric or psychological cl aim.
A relevant reference is Scott O. Li lienfeld, James M. Wood, & Howard N. G arb, “e
Scientic Status of Project ive Tec hniques” (November ) : Psychological Science in
the Public Interest . For an abstract of this a rticle, see text at note  in chapter  of thi s
book. See als o John Hunsley et al., “Controversial and ue stionable Assessment Tech-
niques” in Scott O. Lil ienfeld et al., eds., Science and Pseudoscience in Clinical Psychology
(New York & London: Guilford Press, ) c.  at –.
See also Denni s P. Saccuzzo, “Still Crazy a er All ese Years: Calif ornia’s Persistent
Use of the MMPI as Chara cter Evidence in Criminal Ca ses” ()  U.S .F. L. Rev. :
argues the MM PI was intended for use as a psychologica l test to evaluate such conditions
as schizophreni a or depression, and that it is misused in cri minal court as pro le evidence

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