Expertise in law, medicine, and health care.

As the practice of science-based medical evidence has challenged the medical profession to consider the scientific bases for its methods and procedures, on a seemingly parallel path, the United States Supreme Court's 1993 decision in Daubert v. Merrell Dow Pharmaceuticals has challenged the legal system to consider the science underlying claims of medical expertise. This article examines how the legal system has responded to that challenge and why the response has been more limited than many had expected; the implications of the legal system's approach to scrutiny of claims of medical expertise for the practice of science-based medical evidence; and, the central elements of any meaningful change in legal assessments of expertise in medicine and health care.

Getting it right: the trial of sexual assault and child molestation cases under federal rules of evidence 413-415.

Congressional enactment of Federal Rules of Evidence 413-415 changed centuries of the law which had excluded evidence by the state that the defendant had committed other bad acts and was therefore the sort of person who would be more likely to commit the act charged. The passage of Rules 413-415 opens the door to this type of character evidence in sexual assault and child molestation cases and requires trial judges to assess the probative value of this propensity evidence offered. Yet, neither these rules nor their legislative history offer much guidance in this assessment. This article offers guidance to trial judges and lawyers to assess the probative value of propensity evidence offered under these rules.

The mental state at the time of the offense measure: its validation and admissibility under Daubert.

Melton et al. (Melton GB, Petrila J, Poythress NG, Slobogin C: Psychological Evaluations for the Courts (ed 2). New York: Guilford, 1997) recently advocated the use of the Mental State at the Time of the Offense (MSE-Offense) measure not only as a screen for insanity evaluations but also as the sole measure in "obvious" cases of insanity. Given this recommendation for expanding the role of the MSE-Offense, the current authors have evaluated the available data based on its construction and validation. We found fundamental flaws in its development and grave shortcomings in its validation. Based on these limitations, we conclude that the MSE-Offense is unacceptable under the Daubert standard (Daubert v. Merrell Dow Pharmaceuticals, Inc., U.S. 113 S. Ct. 2786 (1993)) for either the screening or determination of criminal responsibility.

Conducting forensic examinations on the road: are you practicing your profession without a license?

Psychiatrists and other mental health professionals retained in civil or criminal litigation are frequently required to travel to a state in which they are not licensed to perform assessments and offer testimony. Adverse professional and legal consequences may await the unwary peripatetic forensic expert. Failure to address local practice requirements may result in disqualification to testify as well as civil and criminal liability, professional disciplinary action, and denial of liability insurance coverage. In this article, the authors address preventative measures to avoid charges of practicing without a license when the forensic expert crosses state lines.

Special perspective an immodest proposal: should treating mental health professionals be barred from testifying about their patients?

Notwithstanding ethical rules that address therapeutic and forensic role conflicts for psychologists and psychiatrists, overzealous patient advocacy by therapists, tightened reimbursement for therapy, and a growth market for forensic psychology and psychiatry, have led many therapists to appear willingly as forensic experts on behalf of their patients. Existing ethical rules, as well as other proposed approaches to address this problem, assume that it can be resolved by modest changes in existing practice that permit therapists to testify as long as their testimony avoids psycholegal opinions. This essay questions whether these modest changes can adequately address this problem and advances consideration of a more radical proposal to address this problem, prohibiting therapists from testifying about their patients.

The diagnostic and statistical manual of mental disorders in the courts.

The DSM is designed with the intention that it will be used in clinical and research contexts, not as a guide for the courts. Increasingly, from DSM to DSM-III-R, the introductory cautionary statement in the manual has warned against its use in the judicial context. The drafters of the DSM faced a choice and might have chosen to address in some greater detail those disordered behaviors that do have legal relevance in that they arise with some degree of regularity in the courts. The following essay examines this choice and its consequences.

The privilege study.

We evaluated the impact of the Texas limited privilege statute, enacted in 1979, through a questionnaire study of 121 lay persons, 79 patients receiving psychiatric outpatient treatment, and 84 psychiatrists. An almost equal percentage of lay persons and patients knew or guessed correctly that the statute existed (26% v 27%), but only 45% of the psychiatrists knew or guessed correctly that it had been enacted. Lay persons indicated that they might disclose more to a psychiatrist or psychologist if they had statutory protection, but only a few of the patients said they would have sought treatment earlier or would have disclosed more had they known of a privilege statute. Patients reported that they relied more heavily on their psychiatrists' ethics than on the statute to protect their privacy.