Cochrane Expert Testimony
www.cochranexpertestimony.com
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PSYCHOLOGY,
EXPERT TESTIMONY AND THE LAW It is important for the courts to know how to assess whether expert testimony in psychology is scientifically and clinically valid or is unsubstantiated theory or even "junk science"1 dressed in pseudo-scientific terminology. Most lawyers and legal decision-makers have had limited exposure to the research methods and analysis-of-variance used in psychology.2 They also have little or no experience with the melding of research outcomes with practical clinical situations and therefore they may be uncertain about some research-clinical subtleties. Sometimes, for example, psychology research is based on statistically sound methods but the generalizability of the outcome data is limited because the studies were conducted in an academic setting rather than a clinical setting. Sometimes too, the research methods of studies are sound but key factors such as each person's unique perspectives and an individual's faith in him or her self to do what is required are not included in the design. For example, volumes of cognitive-behavioral research have been published on coping strategies 3 and on treatments for obesity 4 over the last thirty years but this research has not resulted in the development of effective treatments in either of these realms. The flawed logic
to which purveyors of psychological pseudo-science adhere follows
this pathway. It is true that the cognitive behavioral model is
the treatment model used in most psychology research. It is also
true that emotion and self-efficacy are important factors in well-being
and it is true that these variables need to be more effectively
incorporated into psychological research. It is also true that results
from longitudinal studies and meta-analyses of existing studies
are conducted too infrequently. "Therefore, it is true that
the limitations of mainstream research make it appropriate and praiseworthy
to promote pseudo-science in the guise of creative innovation."
The legal profession needs practical tools and guidelines for ascertaining the validity and reliability of the expert testimony that is provided by health professionals in psychology.5 The following information and concepts offer a preliminary yet reliable framework for assessing the "expertness" of expert testimony in psychology.
An expert witness is usually asked to provide understanding of a relevant issue that is outside the ordinary knowledge of a judge or jurors and in so doing, most experts draw upon mainstream research. Mainstream research is that which adheres to scientific standards of research and is published in peer-reviewed journals approved by the psychology or psychiatry associations of a given country. The Canadian Psychology Association and the American Psychiatric Association are examples of these national associations. Books on psychology subjects may also be reliable if original research is appropriately cited to support the theories presented in the book. However, some authors of psychology books do not cite mainstream research to support their theories and instead frequently cite parapsychology sources that are usually accepted without question by the unsophisticated segment of the book-buying market for whom these books are written. Unless one knows what to ask, parapsychology journals can seem as valid as mainstream journals. However, the editors of parapsychology journals rarely expect or require authors to adhere to sound research principles. It will be helpful for lawyers and judges to have a simple but reliable framework that they can call upon to assess whether expert testimony in psychology rests upon a firm foundation of science or upon the sands of myth, bias and magical thinking. The following analogy will help lawyers and judges scrutinize the professional credibility of most expert evidence on psychological issues. Mainstream research utilizes the principles illustrated in this simple analogy. The Rainmaker Throughout history many cultures in arid parts of the world have relied upon the mystical rituals of a rainmaker to bring on much-needed rain. The rainmaker was usually a charismatic and mysterious person who fostered the belief that he or she had knowledge and influence in realms unavailable to the average person. The pomp and circumstance surrounding the rainmaker and the raindance were so impressive that many important questions were never asked. When it appears that an expert witness might be a psychological rainmaker, the following questions will be helpful. After the raindance,
did it rain? This simple
analogy illustrates the key principles of analysis-of variance 6
and provides a framework for questioning the reliability and relevance
of expert testimony. ANOVA is the primary reason for doing mainstream
research. Researchers seek to determine, by When a particular
treatment or psychological concept is presented as part of expert
testimony, the expert should be asked to cite the research that
supports the authenticity of this treatment or concept. Without
the backing of mainstream research, the testimony can easily be
challenged. If research is cited, the expert should be asked whether
the journal in which it was published is a CPA or APA journal. If
it isn't a sanctioned journal, the testimony can again be challenged.
Of course, the research cited may be credible but it also has to
be relevant to the situation in question. The research design used in mainstream research controls for extraneous variables that could influence the treatment outcome 7 (does the raindance work on sunny days or just on cloudy days?). Dismantling studies seek to clarify which aspects of a treatment are necessary and which are not. For example, EMDR (eye movement desensitization and reprocessing) has been a very popular treatment for trauma since 1989. However, current type-A research indicates that the patient's directed eye movement, which was originally presented as the fundamental aspect of the treatment, is not a factor in the treatment outcome.8 If eye movement was the distinguishing feature of EMDR and eye movement is not a statistical predictor of outcome, what is EMDR? A psychological treatment, concept or strategy should be useable by other properly trained therapists. If it is exclusive to a particular therapist, the outcomes are a factor of the therapist rather than a factor of a treatment. Claims of unique and exclusive therapeutic success, frequently attributed to vaguely worded concepts and processes, cannot be verified by mainstream research and therefore can only be supported by unreliable anecdotal evidence.9 Research design
and ANOVA permit researchers to make probability statements about
outcomes arising from treatments or specific aspects of treatments.
ANOVA does not generate proof. Rather it generates probability statements
such as: there is a 95% probability that this positive outcome occurred
because of that treatment.10 Whereas other influences remain possible,
sound research design and ANOVA allow researchers to determine whether
a treatment is valid and reliable. Without scientific research we
have no reliable means to assess whether a treatment is effective,
whether a treatment or It is true that psychotherapy is an art but it is an art conducted within the context of science. Without the science, it is junk psychology.
Psychotherapy takes place between two or more people in an office setting with the relative security of confidentiality and mutual trust. The patient usually clarifies the initial goals of his or her therapy, though these goals may be refined or altered as the therapy progresses. The psychologist or psychiatrist employs a variety of research- validated tools and strategies to help the patient reach his or her therapy goals. The therapy process does not always require the same search for truth that the legal process demands. A therapeutic outcome can often be achieved from the perceived realities of the patient. The psychotherapist needs to be well-informed about the research pertaining to the issues at hand but also needs to respect and respond to the unique circumstances of each patient. The need for flexibility and the creative art of therapy make it appropriate for the therapist to experiment with creative interventions within the context of researched principles. However, when
psychology concepts, theories, intervention strategies and patient
behaviors become part of evidence in law, there is less room for
unverified perception Memory and Truth Memories generally,
and recovered memories in particular, have generated considerable
controversy in court proceedings throughout the 1990's. Many people,
including some ill-informed health professionals, felt that memory
could be compared to a stack of chronologically arranged photographs
stored in the vault of the human mind. Subsequently, memory was
considered by some to be synonymous with fact. Actually, memory
is more like a stack of paintings that may or may not be stored
chronologically and they are altered each time the artist retrieves
them. A consensus now exists among The accuracy of a memory is not determined by the amount of detail present, the intensity of emotion that accompanies it, or by interventions with hypnosis or with barbiturates such as sodium amytal.13 In a therapy setting it is not always necessary to corroborate subjective memory but in a legal setting, corroboration of memory is obviously essential. Mental health professionals have no special abilities to tell whether a memory is factual, the product of creative imagination, socially influenced or, a fabrication.14 Corroboration is the only reliable way to confirm or disconfirm a memory. Unique Realities Human beings are creative, active information-processing beings for whom reality is unique. Everyone experiences life personally and everyone, at one time or another, especially in highly charged emotional situations, feels certain that his or her perception of reality is absolute reality. Once a person has formed a conclusion about a particular perceived reality he or she selectively attends to the factors that seemingly confirm this reality while ignoring factors that challenge it. In an adversarial situation, differing perceived realities are the norm and corroboration of these perceived realities is essential. Meaning Attribution There are two
sources of meaning attribution that warrant the attention of lawyers
and judges. The first and by far the most common source consists
of most members of the general public. Everyone periodically forgets,
or chooses to ignore, the principle of unique realities and projects,
often with considerable fervor, his or her version of reality onto
other people. This form of mind-reading often creates considerable
unresolved Sometimes meaning
attribution arises from a form of professional arrogance. The history
of psychology and psychiatry has been greatly influenced by Sigmund
Freud and his psychoanalytic model of treatment. This treatment
model and the theory from which it was developed, rests on the assumption
that a highly trained analyst is able to reliably interpret the
real and often unconscious meaning of a patient's thoughts, dreams
and Hypnosis and the Legal System The recovered memory and false memory controversies of the 1990's have contributed to the development of a negative perception of hypnosis among many lawyers and judges. This perception is understandable but unfortunate since it is based on the misuse of hypnosis by a small segment of health professionals. This group consists of a number of minimally qualified practitioners and a few qualified practitioners who seem to have forgotten their training in research design and outcomes. These health professionals have displayed an astonishing lack of awareness about the nature of memory and about suggestibility. They functioned, until recent court challenges initiated greater caution among some of them, from the view that hypnosis, employed by the therapist, can uncover the truth that is "recorded" in the "unconscious" mind of the patient. 17,18,19 This view of memory is simply not supported by mainstream literature. One of the consequences of this blatant and irresponsible misuse of hypnosis has been an over-emphasis on hypnosis as a cause of memory distortion. The research shows that memory distortion is neither unique nor specific to hypnosis.21 Memory distortion can occur during all forms of recall. Suggestions and leading questions can contribute to the distortion of a person's memory with or without the use of hypnosis. Hypnosis is a term that has defied continuous efforts by health professionals to reach a consensus on its meaning. Even the American Psychological Association definition, which is summarized later in this section, is less than clear. Therefore when expert testimony is provided on the role of hypnosis in a court case, lawyers and judges should ask the expert to clarify what he or she means when using the term hypnosis. Without clarification the door is open to confusion, meaning attribution and judgment errors. When the expert has provided a working definition of hypnosis, lawyers are then able to ask the questions from the rainmaker analogy to determine whether the hypnosis component of the expert's testimony is valid. Until relatively recently, many members of the general public and a surprising number of health professionals, have held the view that hypnosis is a special and altered state of consciousness induced in the patient by the "hypnotist". In this state the person "hypnotized" is given suggestions by the "hypnotist". Theoretically these suggestions somehow bypass the recipient's conscious mind and are accepted by his or her unconscious mind. The implication of this view is that hypnosis is a form of treatment administered by a health practitioner to treat a variety of physical and psychological issues. From this perspective the burden of effort and responsibility is removed from the patient and placed with the "hypnotherapist". When the raindance analogy is applied to this model of hypnosis it becomes evident that mainstream research simply does not validate this concept of "suggestion-given-suggestion-received." If mainstream research supported this simplistic model, hypnosis would be hailed as the primary treatment for most psychological issues. In an effort to minimize the misunderstandings arising from the use of one term to represent many phenomenon, the APA has defined hypnosis as "a procedure during which a health professional or researcher suggests that a client, patient, or subject experience changes in sensations, perceptions, thought or behavior. The hypnotic context is generally established by an induction procedure."20 There is no claim that the suggestions given are reliably accepted and acted upon. There is no attempt to define "hypnotic context" nor does the APA comment on whether this context is a necessary part of the procedure or a predictor of therapy outcome. The APA does go on to say however, that "hypnosis is not a type of therapy…Instead, it is a procedure that can be used to facilitate therapy but clinical hypnosis should be used exclusively by properly trained and credentialed health care professionals who have, in addition to their mainstream training, received training and supervision in the clinical use of hypnosis. Those providing the training and supervision should know and respect the mainstream research and present hypnosis as a valuable adjunct to psychotherapy. Simply stated,
hypnosis is a valuable tool that can be used in therapy but, like
any other therapeutic tool or concept, it should be used within
the context of mainstream research. Without this scientific context,
it is junk psychology.
Each decade seems to generate a new batch of syndromes and fringe therapies in North America. These new cures are usually packaged in pseudo-scientific terminology and wellness metaphors such as "re-programming the unconscious", "healing traditions", "energy therapies", "past lives therapy" and "flushing one's emotional toxins." The therapies usually promise immediate and miraculous results for even the most challenging of human situations. The syndromes consist of a wide-ranging array of symptoms that are presented as validation of an unverified trauma. A familiar example from the 1990's is, "If you have some or all of the following symptoms, you were undoubtedly sexually abused." The list of symptoms offered is astonishingly wide-ranging. As Supreme Court Justice Jack Major stated recently,24 expert testimony can be "dressed up" in such impressive, scientific terms that jurors can find it to be infallible. Fortunately, lawyers and judges can use the ANOVA questions from the raindance analogy to challenge any testimony that appears to be based upon a fringe therapy or a symptom-laden syndrome. Health professionals who continue to embrace these unsubstantiated therapies and syndromes may find that instead of offering expert testimony they are in court defending the validity of their particular form of raindance. For example, in April of 2000, a 10-year old girl suffocated to death in the midst of a "rebirthing" activity conducted by three therapists in Colorado. The three therapists have been charged with child abuse causing death.24 SUMMARY Other psychological issues such as risk assessments, various forms of automatism and the role of personal responsibility in cases involving substance abuse were not included in this paper. The principles of research credibility certainly apply to these contentious issues but they warrant more space than the parameters of this paper permit. There is no intent in this paper to advocate an inflexible adherence to science at the cost of the essential human interaction that is the cornerstone of all psychotherapy. Experimentation with new therapies and new intervention strategies certainly needs to be conducted if the field of psychotherapy is to continue to develop. However, these new developments should take place within the context of a responsible theory building process. This process begins with the generation of a hypothesis arising from an observed and potentially useful phenomenon. Then, using mainstream research design and ANOVA, the hypothesis is tested repeatedly. If the results of these controlled studies are sufficiently positive, a new theory begins to take shape. Ongoing research and clinical feedback will determine the strength of new treatments that are based on this theory. This careful developmental process shows respect for the well-being of patients and for efficacy-based treatment. It also provides a professional framework to facilitate the art of therapy. The guidelines offered here gives lawyers and judges a preliminary basis from which they can ascertain whether an expert's testimony in psychology rests on the mainstream research process or whether it is based on the unsupported bias of the expert. ENDNOTES
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