Who the Hell Are You? Qualifying For a Murder Case
Establishing Expert Witness Status 101: A [Really] Brief Review
Posted Sep 26, 2013
The defense team of a man on trial for murder initially believed that having court experience was the important factor. Hence, they approached a forensic art therapist to provide expert witness support. She worked primarily with children and families in addressing abuse and custody; when she heard what the situation entailed—providing support for someone on trial for the murder of a child—she declined, deeming it a conflict.
The defense team was soon pointed in my direction; they were told that if they wanted to consider someone who had worked with people who murdered and committed other heinous acts, they should contact ‘Gussak;’ I recognize this is a dubious recommendation at best. I am not a forensic art therapist. However, it seems my limited experience with the courts was trumped by my familiarity and knowledge of prison and aggressive populations whose profiles and crimes were not unlike those of the defendant.
A number of art therapists around the country have earned the right to be expert witnesses; each of them had to proceed through an established verification and validation process (Cohen-Liebman, 1994; Safran, Levick & Levine, 1990). Special attributes are taken into account before someone is granted such a status, which begs the question:
Is there such a thing as a certified Forensic Art Therapist?
Since the first post, several people have emailed asking what would need to be done to become a certified forensic art therapist. Although I believed there was no such designation, I contacted well-known forensic art therapist, Marcia Sue Cohen Liebman, to be certain. Although she coined the term forensic art therapist, she is not certified as one; rather, as she indicated, she is qualified to testify in the area for which she is chosen, and is recognized as being an expert—for example, art therapy and child sexual abuse. So there is not a certification per se—but perhaps there should be one.
As she indicated, and I must confess that I concur, as there is no real process of accountability, perhaps such a specific designation should be created to provide culpability. [To be fair, there should be one to cover many aspects of the field: medical art therapy, education, forensics, substance abuse, sexual abuse, family, etc…]
Or perhaps even establish something similar to what Dr. Karen Franklin relayed in a recent post for her PT blog Witness; recently the APA finalized specialty guidelines for forensic psychologists [this post can be found here]. Maybe its time our field considers similar guidelines for forensic art therapists.
[Of course, this requires a much larger discussion.]
Without such formal criteria or designation, one should be careful; to be able to do this kind of work, one should be educated in many areas, including [but not limited to] life-span development; psychopathology; behavior of individuals and groups; principles of psychotherapy; assessments; and the creative process. Because the forensic art therapist may be asked to testify at court hearings, judicial and forensic training is also basic. A forensic interviewer or evaluator is trained in additional arenas. For example, the forensic art therapist who investigates child sexual abuse must understand: child development, including memory, suggestibility, cognitive capabilities, concept formation, and expressive-receptive capabilities; normal sexual development; offender profiles; credibility assessment; legal issues; state criminal codes; question continua; current research; special populations; cultural competency; and clinical versus forensic interviewing.
As Ms. Cohen-Liebman stressed, “In other words, you need a specific body of knowledge to be able to say you do this kind of work.”
So, you may believe you have the capabilities of providing such support—but what is the legal process?
Daubert and Frye walked into a bar...
Early on, what was known as the Frye rule (Frye v. United States, 1923 indicated “scientific testimony is admissible only if the witness’s tests and procedures have gained ‘general acceptance’ within the relevant scientific or technical community” (Lubet, 1998, p. 4). This ruling, originally established to determine the admissibility of a lie detection method clarified that “somewhere in this twilight zone [between experimental and demonstrable stages] the evidential force of the principle must be recognized, and . . . [and has] gained general acceptance in the particular field in which it belongs” (Blau, 1998, p. 6).
The United States Supreme Court revisited this in 1975 and developed the Federal Rules of Evidence, to formally grant status. Rule 702: Testimony by Experts (Bennett & Hess, 2006), or simply the Daubert rule, [named after the first case in which it was applied, Daubert v. Merrell Dow], designates the trial judge as the “gatekeeper”—in essence, it is up to the judge to decide if such testimony is reliable enough (Lubet, 1998, p. 4). If an opposing attorney believes that an individual does not qualify as an expert witness, the judge may hold a “Daubert hearing.”This law has been commonly accepted as the guiding principle for qualifying an expert witness by many—but not all-- state courts.
Essentially, the “Daubert ruling substitutes a reliability test for a relevancy test” (O’Connor, 2006, para. 8).
Since revisited, the ruling now allows “an opinion from an expert who is not a scientist should receive the same degree of scrutiny for reliability as an opinion from an expert who purports to be a scientist” (Bucklin, 2010, para. 4).
Some states have adopted Daubert, others use Frye, (Cheng & Yoon, 2005) and still others do not use either rule, either developing their own procedures for assessing a person’s ability to provide expert testimony or create a hybrid of the two existing standards.
What does all this mean for art therapists? Each art therapist as expert witness has been validated through the court system of the state in which they are testifying. In one state, he may be reviewed under Daubert, in another Frye standards may apply. While this discrepancy may be relatively easy for a practitioner in an established profession to overcome, such as endocrinology (although this was not always the case), art therapists may find themselves floating somewhere within the “twilight zone”—unique enough to be processed following intense scrutiny, but nevertheless will still need to prove themselves.
So, when all is said and done, how the hell did they decide that I was qualified?
Personal Experience: Or, how I was deemed [somewhat] worthy…
Hence, there were several criteria considered prior to the court accepting me as an expert witness. Through my vita and follow up interviews, I was able to demonstrate that as a clinician, I had some experience in assessments and working with those with acute mental illness and were dangerous. As a researcher, I understood the reliability and validity of various procedures, and could be meticulous. As an educator, I could provide information in a clear and succinct matter that could be easily understood and disseminated.
The court reviewed the request. Eventually, the judge granted latitude and allowed me to be contracted. If the case went to a jury trial, I could still expect a stringent, formal review to verify my qualifications.
As the defense attorney later indicated:
“It’s true with any new field, it’s hard to be qualified as an expert, and yet they would have fought us tooth and nail on your qualifications if we had a jury…but I still think we could have met the burden.”
Even the judge concurred. In a follow up interview conducted for the book Art on Trial, he indicated that, although it was in the purview of the prosecution to question my qualifications, the gravitas of a capital case would have made it more likely for the art therapist to pass a Daubert challenge: “In general, the courts may afford more leeway for the defense in a capital case than another type of case,” and that someone who could be sentenced to death may be provided more flexibility in his or her defense.
Of course, the prosecutor tried to demonstrate that this was the wrong decision, and spent some time during the hearing to invalidate my testimony as best he could, some of it quite colorfully [for the transcripts of these interactions, please see chapter 5 of Art on Trial]. Even still, the prosecutor admitted that he learned a great deal [please refer to a previous post].
Overall, a fair conclusion can be made that although someone may not be deemed what has been referred to as a forensic art therapist, an art therapist may find him or herself in the role. However, regardless of the legal status of an expert witness, just because someone is qualified to testify does not mean he or she will provide effective testimony. Not only must an art therapist be adept at assessing the defendant but must also be able to communicate the findings in a manner that is clear and direct, with confidence and professional demeanor. Hence, if an expert witness bears the burden administered by the court of qualifying by either Daubert, Frye or a mechanism deemed by that state in which the court resides, only the first real hurdle is jumped…
Thank you for your thought provoking questions and comments regarding previous posts. As all blogs, this one thrives on discourse, and I would like to continue to invite you to leave feedback or thoughts you may have. Also, follow me on Twitter @davegussak
Addendum: One more thing; while a future post addresses ethical considerations, including confidentiality and disclosure, some have asked how I was allowed to present this case. Was there not supposed to be a gag order that would have prevented me from disclosing anything about this case? Initially, this was so; the first contract I received had such a clause. However, while I wished to provide these services, I explained that as an educator and clinician, I may want to eventually present this case, and—dare I say it—publish something about it. The defense team members were incredible, and fully understood this—one of the members of the defense lectured at a nearby university. Therefore, they retracted the original agreement, and a new one was made that indicated that once the case was complete and a judgment made, I would be allowed to present it. Hence, although my involvement with the case began in 2006, I did not publically discuss, present nor publish anything about my experiences until the case was completed in 2009.
Bennett, W. W., & Hess K. M. (2006). Criminal investigation (8th ed.). Florence, KY: Wadsworth.
Blau, T. H. (1998). The psychologist as expert witness (2nd ed.). New York: Wiley.
Bucklin, L. (2010). Rule 702 of the Federal Rules of Evidence now incorporates the Daubert / Kumho / Joiner requirements. Bucklin.org. Retrieved from http://www.bucklin.org/ fed_rule_702.htm.
Cheng, E. K., & Yoon, A. H. (2005). Does Frye or Daubert matter? A study of scientific admissibility standards. Virginia Law Review, 91, 471–513.
Cohen-Liebman, M. S. (1994). The art therapist as expert witness in child sexual abuse litigation. Art Therapy: Journal of the American Art Therapy Association, 11 (4), 260–265.
Gussak, D. (2013). Art on trial: Art therapy in capital murder cases. New York, NY: Columbia University Press.
Lubet, S. (1998). Expert testimony: A guide for expert witnesses and the lawyers who examine them. Notre Dame, IN: National Institute for Trial Advocacy.
O’Connor, T. (2006). Admissibility of scientific evidence under Daubert. Megalinks in Criminal Justice. Retrieved from http://www.apsu.edu/oconnort/3210/3210 lect01a.htm.
Safran, D. S., Levick, M. F., & Levine, A. J. (1990). Art therapists as expert witnesses: A judge delivers a precedent-setting decision. Arts in Psychotherapy, 17, 49–53.