Crossfire-Cover:Crossfire 5/12/08 11:37 AM Page 1 As psychologists, we are highly trained mental health professionals. In the consulting room we are generally ‘in control’ and have a good feel for what is happening. However, in a court of law, it can be quite frightening as anything can happen. The vulnerability we feel in a courtroom is a professional vulnerability. This is because a psychologist can be made to think that his or her competence is on the line. This is not usually the case, but it is what it feels like. It is important for us to realise that in court it is our opinion that matters. But the process feels personal. This book is written to help you develop understanding and skills so that you can feel confident in presenting expert evidence. The format of the book is not simply to give you information, instead it is also structured to reflect the way psychologists can develop professional competence through supervision. You, the reader, will listen in on supervision sessions with Jason and Mary. The book includes practical suggestions and a focus on skills, as well as structured exercises to practise with peers. While it is not intended to be comprehensive, Crossfire’sapproach will touch on many of the issues that are important in the legal process. Its particular focus is enabling psychologists in Australia to feel confident in court. Author Bruce Stevens has been working in the field of forensic psychology since 1993, and has provided evidence in court over 300 times. In 1995 he founded the Canberra Clinical and Forensic Psychology practice, and he has supervised over 50 psychologists in training. He has lectured at both the University of Canberra and Australian National University. Bruce currently holds both research and teaching positions at Charles Sturt University and is a member of the College of Forensic Psychologists and the College of Clinical Psychologists of the Australian Psychological Society. Crossfire-FinalText.x:Crossfire-FinalText.x 27/6/08 12:00 PM Page i Bruce A. Stevens Crossfire-FinalText.x:Crossfire-FinalText.x 27/6/08 12:00 PM Page ii First published in 2008 from a completed manuscript presented to Australian Academic Press 32 Jeays Street Bowen Hills Qld 4006 Australia www.australianacademicpress.com.au © 2008. Copyright for each contribution in the book rests with the listed authors. All responsibility for editorial matter rests with the authors. Any views or opinions expressed are therefore not necessarily those of Australian Academic Press. Reproduction and communication for educational purposes The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the pages of this work, whichever is the greater, to be reproduced and/or communicated by any educational institution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. For details of the CAL licence for educational institutions contact: Copyright Agency Limited Level 19, 157 Liverpool Street Sydney NSW 2000 Australia Telephone: (02) 9394 7600 Facsimile: (02) 9394 7601 E-mail: [email protected] Reproduction and communication for other purposes Except as permitted under the Act (for example, a fair dealing for the purposes of study, research, criticism or review) no part of this book may be reproduced, stored in a retrieval system, communicated or transmitted in any form or by any means without prior written permission. All inquiries should be made to the publisher at the address above. National Library of Australia Cataloguing-in-Publication data: Stevens, Bruce A., 1950- Crossfire: how to survive giving expert evidence as a psychologist / Bruce A. Stevens. ebook ISBN 9781921513169 Evidence, Expert—Australia. Forensic psychology—Australia. 614.10994 Editing and typesetting by Australian Academic Press, Brisbane ii Crossfire-FinalText.x:Crossfire-FinalText.x 27/6/08 12:00 PM Page iii C O N T E N T S Chapter 1 Introduction 1 Chapter 2 Jason is Forced to Attend Court 3 Chapter 3 Jason in Supervision 7 Chapter 4 Mary as an Expert Witness: 19 Supervision Session 1 Chapter 5 Mary in Court 33 Chapter 6 Mary in Supervision: Session 2 39 Chapter 7 Different Barristers, Same Tricks 45 Chapter 8 A Judgment: Understanding the 53 Legal View of Expert Evidence Chapter 9 A Complaint is Made Against Mary 63 Chapter 10 Towards Excellence 69 Appendix 1 A Practice Report for Peer Supervision 75 iii Crossfire-FinalText.x:Crossfire-FinalText.x 27/6/08 12:00 PM Page iv Crossfire-FinalText.x:Crossfire-FinalText.x 27/6/08 12:00 PM Page 1 1 C H A P T E R O N E Introduction A s psychologists, we are highly trained mental health professionals. In the consulting room we are generally ‘in control’ and have a good feel for what is happening. However, in a court of law, it can be quite frightening as anything can happen. The vulnerability we feel in a courtroom is a professional vulnerability. This is because a psychologist will tend to think that his or her competence is on the line. This is not usually the case, but that is what it feels like. It is important for us to realise that in court it is our opinion that matters. But the process feels personal. This book is written to help you develop understanding and skills so that you can feel confident in presenting expert evidence. The format of the book is not simply to give you information; rather I have structured it to reflect the way psychologists develop professional competence through supervision. You, the reader, will listen in on supervision sessions with Jason and Mary. The book includes practical suggestions and a focus on skills, as well as structured exercises to practise with peers. While it is not intended to be comprehensive, Crossfire’s approach will touch on many of the issues that are important in the legal process. Its particular focus is enabling psychologists in Australia to feel confident during cross-examination. 1 Crossfire-FinalText.x:Crossfire-FinalText.x 27/6/08 12:00 PM Page 2 Crossfire-FinalText.x:Crossfire-FinalText.x 27/6/08 12:00 PM Page 3 2 C H A P T E R T W O Jason is Forced to Attend Court J ason qualified as a professional psychologist by completing his fourth year in psychology, followed by a further 3 years working in the public mental health field. He then entered private practice,quickly building a solid list of counselling clients. One of his clients is Rebecca, a 36-year-old single mother, who stopped working for a security company after experiencing sexual harassment. This led to a disputed worker’s compensation claim. After about 15 sessions of counselling with Jason, Rebecca’s employer had their insurer write to Jason asking for a treatment report. Jason wrote a brief report that included a tentative diagnosis of reactive depression. He then billed the insurance company at the hourly fee rate as recommended by the Australian Psychological Society and thought little more about it. Jason believed what his client had told him, namely that she has a rightful claim for compensation and the insurance company should pay up. A couple of months later, while still treating Rebecca, Jason received a subpoena for his treatment notes. He found this highly 3 Crossfire-FinalText.x:Crossfire-FinalText.x 27/6/08 12:00 PM Page 4 CROSSFIRE intrusive, fumed about the loss of confidentiality, and even thought briefly about destroying the notes. Instead, he wisely rang Rebecca’s lawyer, who advised him to comply with the subpoena by sending a photocopy of all correspondence and the contents of his file. Rebecca talked to Jason about the impending court case and eventually he was served with another subpoena to attend court. Jason went to court, as instructed in the subpoena, and waited three hours to be called in to give evidence. This was his first time in court and he found it all very disorienting. He wasn’t sure where to go and had to ask the court attendant for directions. The court attendant merely nodded towards a box to the left of a higher desk where the magistrate sat. Jason was sworn in, preferring to take the oath. The first barrister Ms Green, representing Rebecca, seemed friendly enough. She asked questions about the problems Rebecca had encountered when she first began work. She then asked about symptoms of depression and Jason felt on a ‘bit of a roll’ thinking to himself, ‘This court stuff is easier than I thought’. The other barrister, Mr Black, represented the insurance company. He did not seem at all friendly and instead was quite aggressive and contemptuous in his questioning. The first question was more of a statement: ‘I gather that you are not a qualified medical practitioner?’ Jason answered that he was a registered psychologist, but he felt defensive. He felt even more on the spot when Mr Black asked him if he had read the Code of Conduct for Expert Witnesses. Jason had to admit that it was his first time in court and he did not even know about the existence of such a code. Mr Black instructed him about his duty to serve the court in an impartial way, and implied that it was not the same as being an advocate for his client. There were difficulties when Mr Black reviewed Rebecca’s work history: ‘Were you aware that she was dismissed from two previous places of employment?’. This was news to Jason, but worse was to come. She had two charges for DUI (driving under the influence of alcohol) and a history of other driving offences. Jason knew that she was a daily user of cannabis and occasionally used ecstasy when clubbing. He was astonished when Mr Black said that Rebecca had worked in the sex industry for nearly 2 years in her early twenties. Mr Black then turned to the diagnosis of reactive depression. He said, ‘I would like you to consider whether this diagnosis indicates the 4 Crossfire-FinalText.x:Crossfire-FinalText.x 27/6/08 12:00 PM Page 5 JASON IS FORCED TO ATTEND COURT whole picture’. He then took Jason through all the criteria of borderline personality disorder from DSM-IV: This is characterised by five or more of: (cid:129) frantic efforts to avoid real or imagined abandonment (cid:129) unstable and intense interpersonal relationships (cid:129) identity disturbance (cid:129) impulsivity in two areas that are potentially self-damaging (e.g., spending, sex, substance abuse, reckless driving, binge eating) (cid:129) recurrent suicidal behaviour, threats, self-mutilation (cid:129) affective instability with marked changes in mood (cid:129) chronic feelings of emptiness (cid:129) inappropriate intense anger and difficulty controlling it (cid:129) transient paranoid ideation or severe dissociative symptoms. Jason knew that Rebecca had some features of personality disorder, but he had thought that her main problem was depression after what she experienced at work. He was soon led to admit that Rebecca did cling in romantic relationships and went to almost any length to avoid being alone. In his notes he had quoted her as saying, ‘I feel empty a lot of the time’. She was impulsive with spending and she often had ‘one night stands’. Jason had warned her to be more careful in terms of her sexual safety. Rebecca had attempted suicide when she was 16 and he included that in his report to support the diagnosis of depression. Jason also had to concede that Rebecca was ‘up and down’ in her moods. She was a demanding client, with frequent phone calls between sessions. When he was unavailable to see her for a week, she became enraged and it took 40 minutes of the next session to calm her down. The only symptoms Jason did not support were identity disturbance and transient paranoid ideation. Mr Black continued, ‘Would you agree that your client meets seven of the DSM-IV criteria?’ Reluctantly Jason said ‘Yes’. The barrister then added, ‘Then we can conclude that she has borderline personality disorder’. This was more of a statement than a question, and Jason’s silence was his assent. Mr Black continued, ‘I will not ask why you did not make this diagnosis, which of course was made by Dr Lavender (the expert employed by the insurance company). It is clear that he did a more thorough job in his assessment’. He 5