Expert evidence and the court

I’m Dr. Danny Sullivan, I am the executive director of clinical services at Forensicare, which is the Victorian Institute of Forensic Mental Health. I’m a consultant, forensic psychiatrist by training. In many cases, the expert witness is asked to provide an opinion on the ultimate issue. That is whether or not the person met the legal test, which in fact, the court is hearing, and we tend to use words to skirt around that issue. I might say that an insanity defense is available to the person, but that doesn’t mean that I have made the decision that they have an insanity defense. Of course, that is a decision for the court. Expert witnesses understand that the court is not their domain.

It’s not their jurisdiction. They are guests in the court. And their job is to assist the trier of fact through the provision of their expert knowledge and information. In order to do so, they might approach the legal question, but it’s not for them to make the final determination. Similarly, if a person is unfit to be tried, I will typically go through the test if it’s a statutory test, I will go through each element of that one by one and set out what it is that the person said and why I’ve drawn a particular conclusion.

And at the end, I’ll make a conclusion about whether there is a mental disorder present, which has the effect of influencing their fitness to be tried. And for what reason? Once the report is provided, all parties have access to that. So typically for the defense, the defense may choose not to lead a psychiatric report if it’s not of assistance to their client. In our jurisdiction, the prosecution has a duty to act fairly and to lead that evidence. In most cases, an expert report will be tended to the court, and that expert will therefore be available for examination and cross-examination. In my experience, the most helpful part of this is the conference beforehand with the legal representatives.

That’s a chance for the legal representatives to clarify things which are not as clear as they should be in my report, to ask technical questions and to explore what lines of questioning might be useful in the court case. That’s not a matter of coaching the expert. The expert’s opinion remains untouched. But it does help, both the expert and the legal representative work out, how they’re going to approach the matter in court. In court, it’s not a matter of going right through the report and asking questions about all of the irrelevant issues. Generally, a good examination and cross-examination draws out the salient issues only and focuses on their applicability to the legal test.

As an expert, I find that I’m not often on the witness stand for very long. Really, it’s a matter of just explaining my report and then being exposed to cross-examination generally about alternative hypotheses, the certainty with which I hold my opinion and the basis of my opinion. If I’ve done my work well, that’s all set out in the report fairly clearly. And there’s little to be explored in cross-examination. But if my report is limited or sketchy, if I’ve gone in with the expectation that I won’t be questioned, then I can expect some difficulties.

As an expert witness, I recognize that it’s not simply a matter for me to assert my knowledge and expect that that will be respected in the court. It’s really important that the court has the opportunity to explore and to determine for itself whether it agrees with my with my expert opinion or whether it agrees with part of it or whether it disputes that in its entirety. So forensic psychiatrist and psychologists are mental health clinicians who have made themselves available to translate their clinical expertise into information of use to the court, it’s important that they’re not simply pandered to, but it is also important that, like any expert witness, they’re treated with respect.

In some situations, doctors may really dislike being questioned about their opinion. In that case, they’re probably not well suited to being forensic psychiatrists. Forensic psychiatrist have to expect that their opinions are up for scrutiny, that the basis of them has to be made clear, and that the court has the opportunity to explore them. Many doctors and psychologists don’t like attending court. It’s not a familiar setting for them. They don’t like having their opinions exposed to the scrutiny of others, and they certainly don’t like the potential to be exposed to adverse consequences for their reputation.

For that reason, forensic psychiatrist and psychologists have generally selected to make their expertise available to the court, and they’re usually comfortable with being examined and cross-examined. What that means is that they have a way of presenting their information, which is in plain language, which helps the court to understand technical terms. And they also appreciate that their duty to the court means that they don’t have to argue a partisan viewpoint. They can hold a general objective viewpoint. They can make concessions if there are claims that some of the basis of their information is incorrect and they should be able to lay out the basis of their thinking, perhaps in ways that doctors and psychologists don’t normally have to do so.

Earlier, I mentioned the ethics of separating a treating psychiatrist from the expert witness. The treating psychiatrist, you’ll remember, has an obligation towards the welfare of their patient. The expert witness has an obligation to be frank and truthful to the court, but doesn’t have those obligations to the patient. What that means is that they can give frank and fearless advice to the courts without being concerned that they will somehow prejudice the welfare of the patient concerned. That may mean, however, that the opinion they give, could result in adverse consequences for the patient.

And that’s why it’s important, we think, that the patient’s treating psychiatrist is not in a position of having to utter a judgment or an opinion which might go to those sort of matters. As a result, having a group of expert witnesses available to the defense and the prosecution and the courts or having a panel of experts ensures that there is a group of people who can be drawn in, are regarded as reliable, and can provide evidence which is satisfactory to the court.