Is expert psychiatric testimony fundamentally immoral?

Abstract

*Associate Clinical Professor and Director, Division of Forensic Psychiatry, Wright State University School of Medicine, P.O. Box 927, Dayton, OH 45401, U.S.A. The author thanks Michael L. Perlin and Edward M. Hundert for their advice and critiques of an earlier draft of this article, and Eugenie Moody for her research and editing assistance. ‘To simplify discussion, I have focused this article on a set of ethical problems faced bypsychiatrists, who are but one subset of clinicians who serve as courtroom experts. But the general ethical issues I describe also are relevant to the courtroom activities of nonpsychiatric physicians and other mental health professionals, especially psychologists. For example, the issues I raise concerning psychiatrists’ testimony apply in loto to psychologists’ testimony, even though their professional ethical principles have different historical roots. See, e.g., infra notes 5, 6, 13, and 23. ‘See, e.g., Jay Katz, “The Fallacy of the Impartial ExperYRevisited, 20 BULL. AM. ACAD. PSYCHIATRY LAW 141, 143-44 (1992) (concerns about experts-for-hire are exaggerated, but “one finds a greater number of ‘hired guns’ stalking the courlroom who, aided and abetted by members of the legal profession, prostitute their psychiatric knowledge”); Paul S. Appelbaum, Forensic Psychiatry: The Need for Self-Regulation, 20 BULL. AM. ACAD. PSYCHIATRY LAW 153, 154 (1992) (discussing psychiatrist who is notorious “as an opinion for hire” and “shop” talk among forensic psychiatrists about questionable testimony and “the purportedly self-serving motives that lie behind it”). Physician concern about the behavior of forensic clinicians is not a recent development: See Frank J. Ayd, Readings & Reflections, PSYCHIATRIC TIMES 41 (August, 1992) (quoting commentary in 18 JAMA 304 [1892]) (“The boast of some secular papers, that it is possible to buy medical opinions of every character and description, has some shadow of truth”). The belief that some physicians are just “whores for hire” has a longlegalhistory.See,e.g., 1 NIGEL WALKER,~RIMEAND INSANITY IN E~~~~~~(1968)at82,who quotes crown counsel’s cross-examination of Dr. Leo in Rex. v. Lawrence (1801): “Have you not been here before as a witness and a Jew physician, to give an account of a prisoner as a madman, to get him off upon the ground of insanity?” Dr. Leo was a prominent member of London’s Sephardic Jewish community who had participated in the Hudfield trial. For additional examples, see Phillip J. Resnick, Perceptions of Psychiatric Testimony: A Historical Perspective on the Hysterical Invective, 14 BULL AM. ACAD. PSYCHIATRY LAW 203 (1986).