This week there were many topical areas of interest that I could have discussed – for example the Care Quality Commission report on increasing Mental Health Act usage, or the coalition government’s commitment to the parity of mental health care…
However as is my want, when faced with depressing readings such as these, I retreated to defence in fantasy by watching, the excellent, The Bridge. Thoroughly immersed in Scandi Noir I then went on to watch Silent Witness.
In one Silent Witness episode a forensic pathologist was called to give evidence to court in relation to an appeal against a murder conviction. Silent Witness appears to be characterised by a group of individuals who have no difficulty in overstepping personal and professional boundaries in the pursuit of truth but I found this particular example quite intolerable and so decided to write about my understanding of the role of the expert witness in court, where I think reality could be as interesting as fantasy.
These musings reflect my own personal experiences and reading on the nature of the expert witness role. They are referenced and supported where possible but are ultimately not, ironically, entirely expert.
The expert witness
Experts are permitted to give evidence to court when they, by virtue of expertise by experience and training, are able to provide information outside the knowledge of a judge or jury. Common knowledge that will not inform opinion is inadmissible as expert evidence (R v Turner).
Evidence to court by an expert therefore requires that they receive instruction in relation to the information they are to provide and that they are able to provide evidence of their expertise in relation to the facts. Experts are then provided with access to evidence relating to the hearing and will conduct their own assessments and tests according to their expertise.
Of interest the expert witness is privileged in that the evidence they present can be developed partially from hearsay as they will not have been witness to events themselves.
In the case of psychiatric evidence this will involve an interview with for example, in the case of a criminal proceeding, the defendant. Based on the findings of this interview and a review of other evidence provided a report will be produced. Evidence is likely to be categorical – for example this person does or does not meet criteria for a mental disorder diagnosis.
The written report
Individuals will vary their reports somewhat according to personal stylistic preference – a common overall structure is likely to include:
- Statement of instructions received and their origin – defence representation, state or court for example
- Information reviewed in preparing the report
- Interviews conducted and tests performed
- Biographical information relating to expertise
- Statement of collected facts
- This section will consist of a summary of interviews performed and tests performed
- Also summary reference to any evidence reviewed in preparing the report
- A final statement of opinion, or formulation, based on the preceding sections
This may include an interpretation of law as it relates to the question posed – for example exploring a defendants fitness to plead in court.
An expert may also be summoned by the court in order to provide oral evidence in relation to their report. At this point the expert may be exposed to cross examination wherein the validity of their findings are tested. I have never experienced this personally outside of a role-play situation with junior barristers, however even that limited experience was… stressful.
Performance and narrative construction
The above two sections are quite dry, but I think there is quite a lot here that is interesting ethically and philosophically. I want to discuss this in more detail from the perspective of a psychiatrist providing expert witness to a criminal court.
Criminal court hearings represent a situation wherein two competing narratives are performed before a lay audience by legal representatives. The prosecution seeks to highlight the acts of the accused and their impact on the victims. Defence seeks to portray the index offence somewhat differently – being beyond the control of the accused for example.
Expert witnesses provide a third narrative performance. They seek to represent facts and assessment objectively in the manner their findings are presented to the court (Griffith, E. E. H., Stankovic, A., & Baranoski, M. (2010). Conceptualizing the forensic psychiatry report as performative narrative. The Journal of the American Academy of Psychiatry and the Law, 38(1), 32–42).
However in the opinion section of the report, or through oral evidence, the expert is necessarily presenting a narrative interpretation of their findings. This narrative will be constructed in such a way as to be convincing when read by non-experts – the expert seeks to convey their authority through their narrative. At the same time the expert must communicate that their interpretation is impartial and informed by fact.
I’ve previously talked about the role of narrative as a joint construction of experience between clinician and mental health service user. Narrative assessment involves the development of mutual frameworks through which two people can work to develop an understanding of an individual’s experience (Lewis, B. (2014). The art of medicine Taking a narrative turn in psychiatry. The Lancet, 383, 22–23).
The objectivity of diagnosis
The work of diagnostic assessment is complex involving more than the application of criteria from diagnostic manuals – consideration of a background formulation is also necessary in which a range of factors are considered. The nature of diagnosis is clearly important to courts – for example few would contest that the psychotic experiences associated with a diagnosis of Schizophrenia can impair reality testing and therefore mens rea. But what about transient psychotic experiences associated with a personality disorder diagnosis – these experiences are common in my experience but not universally professionally accepted? Ultimately it is the role of the judge and jury to weigh the balance of evidence presented by experts – however does the expert’s narrative construction impact on this process?
Empathy and relationship
Assessment of another person’s experience requires the development of empathy and relationship in order that, so far as possible, those experiences be understood. The therapeutic relationship developed during clinical assessment and treatment is widely recognised as being significant to outcome.
Most assessments are performed with the intent of providing care – this is not always the case in assessment relating to court proceedings however. Accurate assessment requires, in my opinion, exploration through the nature of interpersonal relationship. Ethically how does this sit with the role of the impartial expert witness however?
The characters in Silent Witness are highly talented individuals with a wide range of skills including, but not limited to – martial arts, forensic crime scene analysis, clinical and chemical pathology, and forensic profiling… No doubt these are portrayed in order to create compelling viewing experiences.
I’ve tried in this post to raise more questions than provide answers as I think there is also interest and complexity in genuine expert testimony – it is interesting to consider the role played by clinical expert witnesses while battle rages all around them in terms of treatment and diagnostic paradigms…