Expert Article Library

Forensic Psychology Consultation in Criminal Cases

By Geoffrey R. McKee, PhD, ABBP. E-mail: grmckee@aol.com

Issues regarding a defendant's mental health frequently arise incriminal litigation. Attorneys may have a duty to investigate such matters (Baxter v.Thomas 45 E3d 1501 1995), however, consultation by a psychologist who would qualify as an expert witness may be quite expensive. The purpose of this brief article is to describe levels of consultation attorneys might employ when retaining the services of a forensic psychologist.

I Telephone consultation (only)

At this level, the psychologist agrees to provide telephoneconsultation to the attorney in one or more calls as the case develops. The purpose ofthis type of consultation is to help the attorney identify mental health issues (e.g.,competency to confess, to stand trial, mitigation) to be explored more fully by one of theother levels listed below. The psychologist could also help to identify psychologists whohave case-relevant expertise based on their published research. At this consultationlevel, the psychologist would not offer professional opinions about the defendant as it isimproper and unethical to make statements about persons who have not been personallyexamined. Apart from fees for the psychologist's time, expenses at this level are expectedto be low as the psychologist would not be traveling nor having direct contact with thedefendant. The other levels described below presume an initial telephone conversationbetween the attorney and forensic psychologist.

II Records and transcript review

At this level, the psychologist reviews all available legaldocuments (incident reports, defendant and witness statements, transcripts of previousexperts, etc.) and the defendant's medical, psychological, psychiatric, school,employment, and/or military records. This level of consultation represents a substantialincrease in the psychologist's time commitment: ten hours of records review is notuncommon in death penalty and post conviction relief cases. The psychologist then providesa summary of findings and recommendations to the attorney in a telephone consultation.Because the psychologist has not (yet) personally examined the defendant, his or heropinions would be quite restricted, perhaps to such issues as: (1) standards of care(improper administration or interpretation of psychological tests, inadequate credentialsof a witness to testify as psychologist, etc.); (2) issues warranting furtherinvestigation (competency to confess, to stand trial, etc.); and/or (3) research relevantto issues not raised during previous trials or hearings (juveniles' competence to standtrial, compliance of the mentally retarded defendant at arrest, police photo lineupprocedures, etc.).

III Courtroom "dissertation" testimony

At this level of consultation, the psychologist provides testimonyregarding the research he or she has personally conducted that is pertinent to one or moreissues of the case. The testimony describes the most recent, relevant research which thejudge or jury then applies to the case at hand. Fees and expenses at this level are likelyhigher than previous levels due to the psychologist's travel costs and days away from theoffice.

IV In-court consultation

This level comprises development of questions and in-court advicefor the attorney's cross-examination of the opposing psychologist's qualifications andtestimony. In this type of consultation, the psychologist is retained solely as anadvocate to negate the adverse psychologist's testimony by identifying weaknesses in theopposing expert's methods and opinions. During cross-examination of the adverse expert,the attorney may employ questions previously developed by the psychologist and/orquestions from the psychologist in response to the adverse expert's live testimony.Examples of this type of consultation are the Ziskin/Faust texts (Ziskin, J. & Faust,D. Coping with psychiatric and psychological testimony. Vols.1-3, 4th ed. MarinaDel Rey, CA: Law and Psychology Press 1988). Because the psychologist has reviewed allcase records and reports, prepared and explained the cross-examination questions, and isin court for one or more days, this consultation comprises substantially higher expensesthan previous levels.

V On-site evaluation of defendant and courtroom testimony

At this level, the psychologist conducts a complete forensicpsychological evaluation including multiple interviews with the defendant, extensivepsychological testing, and interviews with others (family, spouse, etc.) following athorough review of all records and court transcripts and telephone conversations with thereferring attorney. This type of consultation allows for the fullest employment of theforensic psychologist's expertise and broadest foundation for opinions about thedefendant. This level comprises the highest number of hours of the psychologist'stime.