What should we permit mental health professionals to say about "The best interests of the child"?: An essay on common sense, Daubert, and the rules of evidence

Family Law Quarterly

Volumn 31, Issue 3, 1997, Pages 551-568

  Shuman, Daniel W ^a  

^a SOUTHERN METHODIST UNIVERSITY   (United States)

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EID: 1542528288     PISSN: 0014729X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (80)

1. Linda F. Wrightman, Predictive Validity of the LSAT: A National Summary of the 1990-1992 Correlation Studies (Law School Admission Council 1993).
2. DANIEL KAHNEMAN ET AL., JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES (1982);
3. Robyn M. Dawes et al., Clinical Versus Actuarial Judgment, 243 SCIENCE 1668 (1989).
4. Donald N. Bersoff, Judicial Deference to Nonlegal Decisionmakers: Imposing Simplistic Solutions on Problems of Cognitive Complexity in Mental Disability Law, 46 SMU L. REV. 329 (1992).
5. Daniel Kahneman & Amos Tversky, Subjective Probability: A Judgment of Representativeness, 3 COGNITIVE PSYCHOL. 430 (1972).
6. Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, 5 COGNITIVE PSYCHOL. 207, 227-30 (1973).
7. Elizabeth F. Loftus & Willem A. Wagenaar, Lawyers' Predictions of Success, 28 JURIMETRICS J. 437 (1988).
8. Allan S. Brett, Treating Hypercholesterolemia: How Should Predicting Physicians Interpret the Published Data for Patients, 321 NEW ENG. J. MED. 676 (1989).
9. Mark Snyder et al., Social Perception and Interpersonal Behavior: On the Self-Fulfilling Nature of Social Stereotypes, 35 J. PERSONALITY & Soc. PSYCHOL. 656 (1977).
10. Baruch Fischhoff, Perceived Informativeness of Facts, 3 J. EXPERIMENTAL PSYCHOL: HUM. PERCEPTION & PERFORMANCE 349, 354-57 (1977).
11. Bersoff, supra note 3, at 351.
12. DANIEL W. SHUMAN, PSYCHIATRIC AND PSYCHOLOGICAL EVIDENCE 7-6 (2d ed. 1994).
13. John B. Chapin, Experts and Expert Testimony, 22 ALB. L.J. 365 (1880) (noting that the expert's training and experience provides the valuable knowledge to be gained by admitting such testimony);
14. David L. Faigman et al., Check Your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying About the Future of Scientific Evidence, 15 CARDOZO L. REV. 1799, 1803-04 (1994) (arguing that the real test imposed was the expert's success in the commercial marketplace).
15. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
16. Paul G. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 COLUM. L. REV. 1197, 1206 (1980).
17. People v. Kelly, 549 P.2d 1240, 1244-45 (Cal. 1976) ("Frye, and the decisions which have followed it, rather than turning to the trial judge have assigned the task of determining reliability of the evolving technique to members of the scientific community from which the new method emerges.").
18. 509 U.S. 579 (1993).
19. "Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement. . . ." But, in order to qualify as "scientific knowledge," an inference or assertion must be derived by the scientific method. Id. at 590 (quoting from the Brief for American Association for the Advancement of Science et al. as Amici Curiae).
20. Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a) [of the Federal Rules of Evidence], whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. Id. at 592.
21. Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry." Id. at 593. Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability. Id. Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error. Id. at 594. Widespread acceptance can be an important factor in ruling particular evidence admissible, and "a known technique which has been able to attract only minimal support within the community," . . . may properly be viewed with skepticism. Id.
22. Daniel W. Shuman & Anthony Champagne, Removing the People from the Legal Process: The Rhetoric and Research on Judicial Selection and Juries, 3(1) PSYCHOL., PUB. POL'Y, & L. (forthcoming 1997).
23. Laura Dooley, Our Juries, Our Selves: The Power, Perception, and Politics of the Civil Jury, 80 CORNELL L. REV. 325, 325 (1995).
24. See, e.g., Paul G. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later, 80 COLUM. L. REV. 1197 (1980);
25. Andre A. Moenssens, Admissibility of Scientific Evidence - An Alternative to the Frye Rule, 25 WM. & MARY L. REV. 545 (1984);
26. James E. Starrs, "A Still-Life Watercolor": Frye v. United States, 27 J. FORENSIC Sci. 684 (1982).
27. Mason Ladd, Expert Testimony, 5 VAND. L. REV. 414 (1952).
28. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988).
29. FED. R. EVID. 702.
30. See generally PETER W. HUBER, LIABILITY: THE LEGAL REVOLUTION AND ITS CONSEQUENCES (1988);
31. PETER W. HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991);
32. Dan Quayle, Civil Justice Reform, 41 AM. U. L. REV. 559 (1992).
33. See, e.g., In re Air Crash Disaster at New Orleans, 795 F.2d 1230, 1234 (5th Cir. 1986). Judge Patrick E. Higginbotham noted that: many experts are members of the academic community who supplement their teaching salaries with consulting work. We know from our judicial experience that many such able persons present studies and express opinions that they might not be willing to express in an article submitted to a refereed journal of their discipline or in other contexts subject to peer review. Stephen J. Morse, The Misbegotten Marriage of Soft Psychology and Bad Law: Psychological Self-Defense as a Justification for Homicide, 14 LAW & HUM. BEHAV. 595 (1990).
34. See Steward v. State, 652 N.E.2d 490 (Ind. 1995); State v. Foret, 628 So. 2d 1116 (La. 1993); State v. Cressey, 628 A.2d 696 (N.H. 1993); State v. Alberico, 861 P.2d 192 (N.M. 1993); State v. Hofer, 512 N.W.2d 482 (S.D. 1994); E.I. du Pont De Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995); State v. Brooks, 643 A.2d 226 (Vt. 1993); Wilt v. Buracker, 443 S.E.2d 196 (W. Va. 1993), cert. denied, 114 S. Ct. 2137 (1994). But see People v. Leahy, 882 P.2d 321 (Cal. 1994); Flanagan v. State, 625 So. 2d 827 (Fla. 1993); People v. Wesley, 633 N.E.2d 451 (N.Y. 1994); State v. Riker, 869 P.2d 43 (Wash. 1994).
35. Stuart A. Greenberg & Daniel W. Shuman, Irreconcilable Conflict Between Therapeutic and Forensic Roles, 28 PROF. PSYCHOL.: RES. & PRAC. 50, 55 (1997).
36. 509 U.S. 579 (1993).
37. 463 U.S. 880 (1983).
38. Id. at 919.
39. Id. at 920-21.
40. Brief for the American Psychiatric Association as Amicus Curiae in Support of Petitioner, at 9, Barefoot v. Estelle, 463 U.S. 880 (1983).
41. 463 U.S. at 898.
42. 509 U.S. 579 (1993).
43. Id. at 582.
44. Id. at 592.
45. Daubert is an interpretation of the Federal Rules of Evidence whereas Barefoot involves constitutional scrutiny of a state court's application of its own evidence rules. But, the Court's sweeping pronouncements in dictum in Barefoot describe how evidence should be addressed in both state and federal court. Barefoot, 463 U.S. at 899. Barefoot is criminal, whereas Daubert is civil. But, our legal system's constitutionally based greater concern with erroneous criminal convictions than with erroneous civil liability determinations [See, e.g., In re Winship, 397 U.S. 358 (197O)] suggests that if a distinction is to be made in standards for admissibility then a higher threshold should exist for the admissibility of evidence in criminal cases than in civil cases, at least for evidence offered by the prosecution. The need for a higher threshold of admissibility in criminal cases than in civil cases also exists because criminal cases lack civil discovery and are less likely than civil cases to involve a presentation of expert testimony by both parties. Paul C. Giannelli, "Junk Science": The Criminal Cases, 84 J. CRIM. L & CRIMINOLOGY. 105, 116 (1993).
46. See Richard J. Bonnie & Christopher Slobogin, The Role of Mental Health Professionals in the Criminal Process: The Case for Informed Speculation, 66 VA. L. REV. 427, 464 n. 121 (1980) (arguing that jurors are naturally skeptical of psychiatric and psychological expert witnesses thus there is little risk of jurors being overawed by these fields);
47. David McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 OR. L. REV. 19, 84-88 (1987) (arguing that psychology should be admissible without being required to satisfy the rigorous admissibility tests applied to hard science because the jury can adequately assess and not be dazzled by this evidence).
48. 625 So. 2d 827 (Fla. 1993).
49. Id. at 828.
50. 690 P.2d 709 (Cal. 1984).
51. Id. at 724.
52. See Daniel W. Shuman et al., Juror Assessments of the Believability of Expert Witnesses: A Literature Review, 36 JURIMETRICS J. 371 (1996).
53. Anthony Champagne et al., An Empirical Examination of the Use of Expert Witnesses in American Courts, 31 JURIMETRICS J. 375, 388 (1991);
54. Daniel W. Shuman et al., An Empirical Examination of the Use of Expert Witnesses in the Courts - Part Two: A Three City Study, 34 JURIMETRICS J. 193 (1994);
55. Anthony Champagne et al., The Problem with Empirical Examination of the Use of Court-Appointed Experts: A Report of Non-findings, 14 BEHAV. SCI. & L. 361 (1996);
56. Shuman, supra note 45; Daniel W. Shuman et al., Assessing the Believability of Expert Witnesses: Science in the Jurybox, 37 JURIMETRICS J. 23 (1996).
57. People v. Beckley, 456 N.W.2d 391, 404 (Mich. 1990) (concluding that Frye did not apply to expert testimony about typical behavior "of sexually abused children because the testimony is not based in a physical science).
58. Michael Harris Bond & Peter B. Smith, Cross-cultural Social and Organizational Psychology, 47 ANN. REV. PSYCHOL. 205 (1996).
59. Bruce D. Sales et al., In a Dim Light: Admissibility of Child Sexual Abuse Memories, 8 APPLIED COG. PSYCHOL. 399, 401 (1994).
60. See STEPHEN J. CECI & MAGGIE BRUCK, JEOPARDY IN THE COURTROOM: A SCIENTIFIC ANALYSIS OF CHILDREN'S TESTIMONY (1995).
61. Compare David Finkelhor & Angela Browne, The Traumatic Impact of Child Sexual Abuse: A Conceptualization, 55 AM. J. ORTHOPSYCHIATRY 530, 532 (1985) (arguing that it is an important part of the healing and empowerment process for victims of child sexual abuse to use the judicial system to bring an end to the abuse),
62. with Jon Elster, Solomonic Judgments: Against the Best Interests of the Child, 54 U. CHI. L. REV. 1, 2 (1987) (commenting on the psychological costs to children of the adversary system).
63. See, e.g., United States v. Rincon, 28 F.3d 921 (9th Cir. 1994) (reliability of eyewitness testimony); Shahzade v. Gregory, 923 F. Supp. 286 (D. Mass. 1996) (recovered repressed memory of child sexual abuse); State v. Foret, 628 So. 2d 1116 (La. 1993) (child sexual abuse accommodation syndrome). See generally Robert P. Mosteller, Syndromes and Politics in Criminal Trials and Evidence Law, 46 DUKE L.J. 461 (1996).
64. Frederick Rotgers & Deirdre Barret, Daubert v. Merrell Dow and Expert Testimony by Clinical Psychologists: Implications and Recommendations for Practice, 27 PROF. PSYCHOL.: RES. & PRAC. 467, 472 (1996). There are many competing theories of behavior on which clinical psychologists draw in reaching diagnoses and treatment recommendations. There is also a large [body of] scientific literature that has addressed empirically testable predictions based on those theories. However, many theoretical constructs are presented by clinicians in expert testimony for which there is no scientific validation, or for which the scientific basis is very slim. The current emergence of "syndrome" testimony is a case in point. Although it is possible to identify common behavior patterns among persons who are known to have suffered traumatic experiences of various types, syndrome theory, and often the testimony based on it, goes well beyond this possibility to state that "all" persons who suffer particular types of trauma show characteristic behaviors. Some practitioners have even been willing to engage in reverse logic and state that because an individual demonstrated a particular behavior pattern, trauma must have occurred. Wood (1994) has discussed at length the potential harm of such reasoning in an analysis of the Parental Alienation Syndrome (Gardner, 1992). Although the fit between syndrome theories and particular legal questions is often good, these theories have not been scientifically tested. This lack of scientific testing makes any conclusions or accounts of events that are based on syndrome theories problematic. Even if the data relied upon are gathered using scientifically valid methods, if the theoretical explanations underlying the data is faulty, the data may be presented in a fashion that misleads the trier of fact.
65. See generally Rosemary L. Flint, Note, Child Sexual Abuse Accommodation Syndrome: Admissibility Requirements, 23 AM. J. CRIM. L. 171 (1995).
66. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993).
67. Martha Albertson Fineman, Child Custody Decision Making and the Politics of Child Advocacy in LAW, MENTAL HEALTH AND MENTAL DISORDER 522, 523 (Bruce Sales & Daniel Shuman eds. 1996): Mental health professionals have successfully made substantial inroads into legal decision making in this area. (Girdner, 1986; Okpaku, 1976). These experts have become accepted as experts in individual cases, as well as sources of social science information on which broad legislative standards, such as mandatory joint custody, are proposed (see Scherrer, 1976; Weil, 1982).
68. Sheila Rush Okpaku, Psychology: Impediment or Aid in Child Custody Cases?, 29 RUTGERS L. REV. 1117, 1140 (1976).
69. JOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD 114 (1979).
70. Shuman, supra note 11, at 13-4, 5.
71. Robert D. Felner et al., Child Custody Resolution: A Study of Social Science Involvement and Impact, 18 PROF. PSYCHOL.: RES. & PRAC. 468 (1987).
72. Thomas R. Litwack et al., The Proper Role of Psychology in Child Custody Disputes, 18 J. FAM. L. 269, 282-93 (1980).
73. Thomas M. Horner & Melvin J. Guyer, Prediction, Prevention, and Clinical Expertise in Child Custody Cases in Which Allegations of Child Sexual Abuse Have Been Made: I. Predictable Rates of Diagnostic Error in Relation to Various Clinical Decisonmaking Strategies, 25 FAM. L.Q. 217, 251 (1991).
74. See also Debra A. Poole & D. Stephen Lindsay, Assessing the Accuracy of Young Children's Reports: Lessons From the Investigation of Child Sexual Abuse, J. APP. & PREVENTIVE PSYCH. (in press).
75. HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 540 (2d ed. 1987) (divorce actions are typically tried to the court without a jury because of their greater resemblance to suits in equity than actions at law).
76. See, e.g., Elster, supra note 51, at 28-32 (arguing that judges may distort the best interests standard by their own assessments of the parent's guilt or innocence, prioritization of the rights of the primary caretaker, making permanent temporary custody arrangements, or awarding custody to the parent who appears to have the greatest need to have custody).
77. HUBER, supra note 26.
78. Shuman, supra note 45, at 30.
79. See, e.g, Phoebe C. Ellsworth & Robert J. Levy, Legislative Reform of Child Custody Adjudication: An Effort to Rely on Social Science Data in Formulating Legislative Policies, 4 LAW & SOC'Y REV. 167, 169 (1969) (review of available research to determine what empirical studies showed about the effects of different custodial arrangements on children's development revealed no studies comparing post-divorce effects of different custodial arrangements). Even as more research has been done on these questions, however, the research still does not respond to the needs of courts in deciding custody disputes in individual cases.
80. David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 MICH. L. REV. 477, 504-15 (1984).