SEMINAR on THE PSYCHOLOGIST AS EXPERT WITNESS IN FAMILY COURT (April 26-30, 2010)

by Gina Ylaya

In the Philippines, the psychologist’s traditional stomping grounds are the academe and private practice. In the past decade,  however, the intersection between psychology and the law has brought more and more psychologists into the arena of the legal profession. What may be considered the watershed moment for this was the enactment of the Family Code in 1987, which paved the way for the use of psychological incapacity as basis for providing  relief to couples in unhappy marriages (Jacob, 2010).  In the late 80’s, Philippine courts started to recognize the expertise of those whose professions (i.e., psychiatrists and clinical psychologists) made them ideally suited to explain human behavior in the forensic setting,  particularly for cases involving declaration of nullity of marriage. When the courts began tapping this specialized knowledge to shed light on the actions of those who appear before them, expert witnessing became a logical career trajectory for the psychologist already established in clinical practice.

Despite 20 years of such recognition, however, the field is still in its infancy (Jacob, 2010). The requirements for qualifying as an expert witness are stringent, but these have not been explicitly articulated in the form of policy or guidelines.  In the meantime, there is a growing number of individuals keenly interested in it as a career choice and have, in fact, already been appearing in court either as private practitioners or representatives of their respective institutions. They handle cases involving marital nullity, child custody, adoption, domestic violence, child and spousal abuse.  This new crop of budding expert witnesses look to the pioneers to mentor them. And the pioneers, concerned about the quality of professional training among these emerging aspirants, want to share knowledge and experience with them. This convergence of aspiration and expertise became the driving motivation behind this seminar.

With her experience as teacher, clinical psychologist, past president of the PAP and International Council of Psychologists, and expert witness in cases involving marital nullity, temporary protection order, custody, adoption, battered wife syndrome, and civil and criminal competencies, Dr. Natividad Dayan took on the task of seminar convenor. 

SEMINAR OBJECTIVES and TOPICS

With Dr. Dayan, the Assessment and Clinical Divisions of the PAP set out to provide seminar participants/ psychologists with tools and techniques to be clinicians in court. Through lectures, mock trials, first-hand accounts of judges and lawyers on their experiences with expert witnesses, and a forum with expert witnesses, participants were taught what the courts expect of forensic psychologists.

SEMINAR TOPICS NUMBER OF PARTICIPANTS
Day 1:  Introduction to Family Law and Forensic Psychology Practice 36
Day 2:  The Expert Witness in Marital Nullity and Domestic Violence Cases 47
Day 3:  The Expert Witness in Child Custody Cases  40
Day 4:  The Expert Witness in Spouse/Child Abuse and Adoption Cases  41
Day 5:  Testifying in Court and Deposition 39
   

THE BASICS:  PSYCHOLOGY AND THE LAW

 Dr. J. Enrique Saplala opened Day 1 with the basics of forensic psychology, how it is distinguished from abnormal psychology, its historical antecedents, and how it is practiced in the country.  Putting the psychologist’s role in the larger context of the law,  Dr. Suzette Agcaoili presented The Pillars of the Justice System  (the community, law enforcement, national prosecution service, judiciary and dispute resolution, penal and correctional institutions).  Establishing the roots of the interface between psychology and the law,  Atty. Floranie Jacob delved into American and Philippine antecedents,  the scope of forensic psychology and the historical underpinnings of the declaration of marital nullity or Philippine-style divorce. 

  

What makes forensic psychology different from therapeutic psychology?  Dr. Dayan discussed the distinction, incorporating ethics into the discussion and taking up the psychologist’s role in a forensic scenario, its scope and limits, the preparation that goes into assuming such a role, including contractual agreements made at the outset with the lawyer and the client.

  THERAPEUTIC FORENSIC
 Whose Client is Examinee? Mental health practitioner Lawyer or court
 Purpose Diagnose and treat symptoms of illness Assist decision-maker or lawyer;  aid court in making a decision
 Required Competency Therapy techniques for treatment of problem/ illness Forensic examination techniques relevant to legal claim
 Examiner – Examinee Relationship Supportive, accepting, empathic Objective or neutral stance
 Notification of Purpose Implicit assumptions about purpose shared by clinician and patient

Formal, explicit notification typically not done

Assumptions about purpose not necessarily shared

Formal and explicit notification required

 Amount and Control of Structure in Relationship Patient-structured and relatively less structured than forensic examination Examiner-structured and relatively more structured than therapy
 Response Style of Examinee  Assumed to be reliable  Not assumed to be reliable
Clarification of Reasoning and Limits of Knowledge  Optional  Very important
 Written Report Brief, conclusory

statement;  confidential

Lengthy and detailed (documents findings, reasonings, and conclusions);  everything revealed
 Court Testimony  Not expected  Expected
     

Sources:

Dayan, Natividad.  Developing Principles of Forensic Mental Health Assessment/ Ethics. Powerpoint presentation,  April, 2010.    

Dayan, Natividad. Irreconcilable differences between therapeutic care and forensic examination relationships.  Child Custody. Powerpoint presentation, April 2010. 

 THE EXPERT WITNESS in FAMILY COURT

 Marital Nullity: The decision rendered by the Supreme Court (known as the Molina decision) in 1997 made the interpretation and application of Article 36 of the Family Code more rigorous. The guidelines require that psychological incapacity  be proven by showing that one or both parties suffer from a “psychological disorder (that) existed at the time of the marriage;  that it continues to manifest itself in the marriage;  that it is serious and incurable;  that the roots of its origins can be clinically traced;  and that the same must be testified to by an expert” (Jacob, 2010).  When there is a breakdown in the elements that make for a successful marriage, how does one prove the existence of grounds for nullity? On Day 2, Dr. Dayan addressed this question,  focusing on three conditions required in the determination of the existence of a personality disorder: gravity, antecedence, and incurability.  Through testimonies of the parties and witnesses, official records,  a clinical interview (encompassing family background, courtship, and married life), and findings derived from objective and projective tests,  grounds for nullity are established.

 As co-author of the Millon Clinical Multiaxial Inventory III,  Dr. Roger Davis zeroed-in on the nature of personality disorders.  It is not sufficient that the clinician knows how to identify and describe the personality disorder, but also how it manifests in and undermines the marital relationship. The MCMI-III’s theoretical underpinnings were discussed, as were its scales, structural and functional domains, diagnostic efficiency, general approaches to interpretation, and applications.

 While marital nullity cases, with some of its celebrity protagonists and accompanying media mileage, may have thrust the psychologist into the public arena,  the cases involving child custody, domestic violence, spousal and child abuse, and adoption are no less demanding of the psychologist’s expertise. As the persona of the child enters the picture, assessment skills focused on the child take center stage,  which, in the seminar,  became most evident in the mock trials on child custody and sexual abuse. Inputs on the clinical interview (by Ms. Zachele Briones), the country’s policies governing adoption (by Atty. Jacob, former Board Director of the Intercountry Adoption Board),  and the prosecution of child abuse and battered wife cases (by Atty. June Ambrosio) took up Days 3 and 4 of the seminar.

MOCK TRIALS and DISCUSSIONS

Four mock trials were conducted:  on marital nullity and temporary protection order (Day 2), child custody (Day 3), and sexual abuse (Day 4), with Dr. Arnulfo Lopez and  Dr. Natividad Dayan playing the expert witness role.  These were highly instructive and engrossing sessions that presented the expert witness, lawyers for the petitioner and opposing counsel, and a judge in a simulation of a Family Court proceeding using actual cases.  Seminar participants were shown court procedure and language, the phrasing of questions, direct and cross examination, challenges to expert witness credibility, and how an expert witness must comport himself/herself in the face of these challenges. The mock trials highlighted the importance of a solid foundation in clinical psychology and assessment techniques, a thorough case work-up,  a well-written report, confidence and composure under intense grilling.              

The participants were most animated when the resource person engaged them and vice versa. Their questions ranged from observations on the mock trials to real-life dilemmas they encountered in their practice.  Among the issues raised were: Do the courts have a ‘bias’ for psychiatrists as expert witnesses? Does the PAP have a policy on who can appear in court? How does one determine professional fees?  The legal practitioners, for their part, gave helpful pointers on the role, knowledge requirement, and professionalism expected of the psychologist-expert witness.

FORUM WITH EXPERT WITNESSES

On the last day, the clinical psychologists took turns sharing their experiences and the accumulated wisdom and insights of years as expert witnesses.

Relationship with Clients and Colleagues:  Dr. Violet Bautista communicates to clients and legal practitioners that psychology is a profession and psychologists are professionals. To protect the integrity of the profession, one must make clear that the assessment process follows rigorous scientific standards as free from bias as possible, the report is not oriented to suit the interests of the client, and the psychologist is not at the client’s beck and call. To avoid confusing role requirements, she differentiates her role as therapist from that of expert witness. She has a  preference for working with clients to whom she is positively-predisposed and whose character she trusts, and finds helping those with limited financial means an “uplifting experience.” Moreover,  years of expert witnessing have led her to respect colleagues’ different assessment of the same case as one way, among many ways, of viewing reality.  

Preparing for Court Appearance:  Dr. Bautista’s preparation begins with writing a curriculum vitae that presents her credentials as relevant to the case she is handling because this is vital to the authentication of one’s qualifications. Because court appearances usually take place months after report submission, she makes sure she reviews the salient findings and conclusions the day before.  Dr. Claudette Agnes also emphasized the importance of being prepared and having mastery of the facts to avoid inconsistencies. Atty. Polly Dy walked the seminar participants through what to expect before a court hearing—from reviewing her report, anticipating cross examination grilling, meeting with lawyers, to what to wear and bring on the day itself.

Handling Cross Examination:   Atty. Floranie Jacob defined and explained the concepts of testimony, direct examination, cross examination, witness impeachment (for reasons of bias, inconsistent statements, character flaw, competency, and contradiction), and the do’s and don’ts of cross examination.  Focusing on cross examination,  Dr. Agnes also touched on being objective and authoritative and  coming across as credible in order to avoid being impeached.  Dr. Arnulfo Lopez reiterated that whatever responses are given in cross examination must have basis;   the clinical interview is a scientific method of gathering data and is not hearsay;  and the psychologist is the professional qualified to assess the presence of a personality disorder.  In the course of her work with the courts,  Dr. Bautista has been asked what books and articles she had published, what approach she used in analyzing the Rorschach,  how she was able to arrive at a diagnosis without seeing her client’s spouse, and whether what she diagnosed as personality disorders were merely lapses in judgment or indiscretions or bad habits.  All of which are attempts to discredit the testimony of the expert witness, and must be answered using one’s clinical expertise and with the self-assurance that comes from trust in one’s work.

POINTS of EMPHASIS

 In the course of five days,  seminar participants were repeatedly reminded of the following salient points:  

 Keep in mind that the psychologist is a professional rendering expert judgment and testimony.

  1. Accept referrals only within your area of expertise.
  2. Clarify roles with the client and lawyer at the outset.
  3. Avoid the dual role of therapist and expert witness of the same client.
  4. Never compromise the integrity of the psychological report—the expert witness is  not hired to provide an assessment that is favorable to the client.
  5. Be thorough and specific in the report.  Expound on the results and particulars of the case.
  6. Know your subject matter.  Be sure of your findings and conclusions. 
  7. Stand by your psychological report;  in family cases, the decision hinges mostly on it.
  8. Be prepared to be challenged on your credentials, methodology, the validity and reliability of tests used, and conclusions reached.
  9. Be honest. Testify only on what you know.

Resource Persons / Clinical Psychology:  Agcaoili, Suzette, PhD;  Agnes, Claudette, PhD; Bautista, Violeta PhD;  Briones, Zachele Marie, PhD cand.;   Davis, Roger, PhD;  Dayan, Natividad, PhD;  Lopez, Arnulfo, PhD;  Saplala, J. Enrique, PhD 

 Resource Persons / Law:  Ambrosio, June (Lawyer);  Bobis, Hannibal (Lawyer);  De Guzman, Elsa (Judge);  Dy, Polly (Lawyer);  Galos, Heidi (Lawyer); Jacob, Floranie (Lawyer);   Soriano, Andres (Judge);  Tantuico, Fina (Lawyer), Villanueva, Candido (Judge) 

 

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