Michael Welner, M.D. Chairman, The Forensic Panel

Forensic Psychiatry & its Case PracticeWhat you should expect from a science and its forensic scientists Michael Welner, M.D. Chairman, The Forensic Panel

Death investigation Disputed confession Trial competency Trial in adult court Capacity to form intent Insanity defense Criminal responsibility Duress and influence Involuntary intoxication Justification Battered defendant Assessment of motive Violence risk assessment Sex offender risk Retardation Presentencing Housing considerations Alternatives to incarceration Forensic Psychiatry, Psychology, Neuropsychology, Neuroimaging

Forensic Behavioral Sciences – Societal Relevance

Forensic Psychiatry & the Behavioral Sciences Achievements: Mental health has matured into a scientific discipline because of its efforts toward standardization Diagnoses, standardized per Diagnostic and Statistical Manual (DSM) IV-TR, DSM V coming Limitations: Contextual application of these standards to the life cycle of the criminal case is lacking

Forensic Psychiatry – Human Evidence Examinee – invested litigant Family, friends, teachers, witnesses, business partners, coworkers, cellmates The evidence – those interviewed – has conflicts, agendas, & biases Drawing out information is only one challenge; sensing when there is more to draw out, and about what, and who from, is another Reliable human intelligence can prove to be the most crucial element in a case Quality of interviewing and questioning is pivotal Forensic psychiatry’s responsibility: the pursuit of reliable human evidence

Forensic Psychiatry – Integrated Human Evidence Forensic psychiatry’s responsibility: integrating human evidence with pathology, physical and toxicology, investigative data Accessibility of the doctor Hearsay exception Reconstruction of actions and ideas and motives unavoidable Corroborating and contradicting layers of evidence Timing and correlation to thoughts and symptoms Communication - Phone, computers (multiple), emails (multiple), Facebook, Tweet, Text Movements – Calendar, bank, credit purchases, travel, cell tower

A Range of Responsibilities…with attendant Challenges Scientist – Truth as Goal Examiner – Objectivity as Goal Forensic Science – Evidence and Fact-Driven Expert – Relevant and Updated Knowledge

Cost and time deadlines forcing shortcuts Parties protected in non-disclosure Notes not released No mandated videotaping Aspirational amidst “different conclusions” Collateral consequences to an opinion Political consequences to an opinion Scientist - Obstacles to Truth

Bias No rules for attorney conduct with experts One sided discussions Solitude Examiner - Challenges to Objectivity

Adversarial system impedes fact-finding Reluctance of witnesses to cooperate Overreliance on self-report exams, tests Poorly preserved evidence - Tox, computer files, cell phone Insufficient emphasis on collateral Forensic ScientistChallenging Evidence –Driven Exams

How does a judge tell? All a court will pay The practitioner-academic divide The clinician-forensic specialist divide The researcher-forensic specialist divide Relevant, reliable, valid What is Expertise?

Relevant Relates directly to the psychiatric-legal question and its context

Reliable Evidence gathered and assessed by different examiners yields consistent data Conclusions from accounting for all available evidence should be similar across scientists

Valid Opinion should account for all source evidence in order to reflect what it is expected to address

Relevance + Reliable source material increasesValidity

Forensic Behavioral Sciences - Evidence No requirement to submit interview notes Scant, illegible documentation of interviews Videotaping still rare and not required Gerrymandered interview Rating scales as substitute Unregulated self-report Variable quality and quantity of investigative scrutiny

Forensic Behavioral Sciences – Transparency? No mandated diligence or established threshold No access to peers for critical review No institutional discipline despite “independence” Organizations do not discipline if they share the ideology Organizations do not discipline their leaders Reduces probative value of well-established discipline Enables hired gun work and discourages honesty

Forensic Behavioral Sciences – Quality Access to evidence Promote corroboration through collateral uninvested sources Hearsay evidence pivotal The prejudice vs. probative problem of admissibility DNA?

Forensic Behavioral Sciences – Quality Telling a jury the who, what, where, when, why increases confidence and awareness of jury Uninformed jury does not truly know the case they are deliberating Psychiatric opinion that limits itself to statements of a self-serving litigant compromises the validity and reliability of the data Psychiatrists are discouraged from attempting to corroborate the human evidence they gather, diminishing the potential of psychiatric evidence

Forensic Psychiatry ConsultationThe Process Diligence and source review Witness contact Interview Testing Oversight and Accountability Report Trial preparation Testimony

Diligence and Source Review Evidence as the evidence dictates Searching by necessity Not path or tox – evidence does not come to you Checklist for accounting Reconstructing timeline, progression choices Death scene, home - internalize Map priorities for exam – deep drill Depth and internal corroboration Early start to ensure emergence Social media as a necessary personal window Using sources to build witness list

Evidence As the Evidence DictatesExperts Rely on Experts Shooting on Beach Videotape Pathologist Dog Dentist Veterinarian Dog Behaviorist

Evidence As the Evidence Dictates Rampage Shooting Diaries Parents Computer Witnesses Cell phone records

Witness Contact After source review Scientific investigative questions differ from investigators’ Proximal physical contact (neighbors) Proximal chronological contact (cell, email, text, FB) Proximal intimacy (best friends, spouses) No one off limits (speak on their terms)

Witness Contact Context-related input Event-related input (previous victims) Identify bad and biased witnesses Advantages of M.D. Mechanics of mass interview Drs. talk to Drs. (get releases to send)

Interview Prepared in advance Symptom specific and elaborated Immunizing against prep Probing Account for local and historical stresses, events Account for range of motives Mad, bad, fad, gonad

Interview Long by design Facilitates intimate discussion Deliberate sequence of movements, ingestions Leverage diligence to date Invest litigant and prompt memory

Interview Engage inconsistencies Establish what is not being informed Calibrate to yield, diminish resistance Timing within interview Ideally, follow up after follow up Videotape Transparency instead of observers (chaperons) No note-taking and the rapport Value even when silent Disciplines examiner

Testing Question specific – otherwise, non-specific findings Dictated by source materials May also be dictated by interview Allow for follow up Allows for more inclusive scrutiny Corrects some examiner blindness Projective testing not validated and potentially misleading Self report of poor validity alone

Testing Malingering Native to every criminal case Not synonymous with accuracy of history Still obliged to resolve answers Interpretation by qualified interpreter Cross examine on computer program

Testing Medical testing underutilized Early tox Psych = computer forensics Communication and private ideas paramount Neuroradiology underutilized and misutilized

Sources & Influences of Bias Conscious bias undetectable in best-trained expert Better experts are more capable of misleading (professional malingering) Momentum of the external influence (political, police) Money Research Publicity Examiner confidence Process that demands certainty Process that rewards argument for the sake of argument Ideological passions

Peer Review – The Forensic Panel Thirteen years Oversight Accountability of examiners and peer reviewers Advantages of non-blind peer review Complementary expertise Promoting diligence Input on possibilities, sources, nature of questions, literature Enforcing adherence to standards Parallels hospital model

Report Adequately referenced Driven by the nature of the data Answer question posed Account for diagnoses not given, and why Written for consumption Advocating an opinion, not a side Footnoted to ensure reflection of general acceptance

Trial preparation Challenge theories Use every fact witness to set up opinion and set up cross eg, absence of psychosis, symptom specific observations of defendant Lead in questions for each witness Cross examination questions sequences for each witness Need science sophistication to cave in multiple experts

Trial preparation Plug into opposing expert testimony early, for scientific inconsistencies Report – what isn’t said as important as what is Must get opposing expert notes responding to illegibility Employ critique for psych testing just as one would for chain of custody or other forensic science protocol Establish norms utilized for neuroradiology interpretation

Testimony Adequate planning ahead of time Factual grasp, no notes Know what needs to resonate Digestible incisiveness Educate about judge Use of exhibits as need be Mining for cross

Summary • Engage early – humint fades, witnesses move • Aim for The Last Word • Promote complementary investigative roles • Protect integrity of exam • Seize high road for transparency • Promote fact over expertise • Hold experts accountable for viabilty of science behind assertions • Hold experts accountable for viabilty of evidence behind assertions • Transcend battle of experts • Goal – withdrawal of all mental health testimony

Thank You Michael Welner, M.D.Chairman, The Forensic Paneldrwelner@forensicpanel.com917.626.8831

Michael Welner, M.D. Chairman, The Forensic Panel