"A colleague of mine bragged at a cocktail party that he had established a reputation as a neutral expert with the family court judges in a wealthy community His reports were accepted at face value by the court. The husband's attorney in a custody matter paid him $15,000. He wrote that the wife was a prostitute, alcoholic, and he quoted the principal of the children's school as saying the children were coming to school disheveled and sexually preoccupied. I later found out that the principal, who had never said those things, was outraged when she read the report. . . ."

This should be the golden age of forensic medicine. The increasingly visible presence of psychiatrists and psychologists in a variety of court cases is undeniable. But even this maturity has not yet enabled forensic mental health to shake off the stigmas that dog other forensic scientists as well. And no criticism is as painful or damaging to the profession as the allegation of being a hired gun.

Who exactly is a hired gun? Depending on whom you ask, the response is likely to resemble Justice Stewart's definition of pornography, "I know it when I see it." Dr. Thomas Gutheil is the co-director of the Program in Psychiatry and Law at the Massachusetts Mental Health Center. In his recently published book, he writes that a hired gun "is an expert witness who sells testimony instead of time." (See The Psychiatrist as Expert Witness 6 (1997)). Dr. Bruce Danto, a forensic psychiatrist from Los Angeles, echoes the provocative tag of Maureen Hagen, author of Whores of the Court. "They are whores," he asserts.

In essence, a hired gun is retained to go into court to knock out the opposing sides case. Some guns are paid with money, some with the rewards of advancing their own professional niches; others exploit the soapbox of the witness stand to advance their political agenda in the psychiatry-law interface. The hired gun provides anything but the unbiased, impassive testimony courts purport to seek to clarify the science.

Randy Otto, Ph.D., editor of the American Psychology—Law Journal and a professor at the University of South Florida, believes public concerns about the hired gun are fueled by coverage of "outrageous cases. It's not representative of what's happening in the real world." Most of the others we spoke to generally agreed that the hired gun is an unusual phenomenon. But those outrageous cases, according to Attorney Terry O'Reilly of California, can be linked to the testimony of an expert whose testimony was not anticipated and had a devastating effect on the trier of fact (Ethics and Experts, 59 J AIR L. & COM. 113, 118 (1993)).

Hard to believe that someone in a healing profession would start out in life intending to sell professional opinions. But sometimes, innocence is lost to advocacy zealotry or poverty. Attorneys drive the process, but experts often grab the wheel. How does this happen?

---

---

Stephen Morse is a Professor of Law and Psychology at the University of Pennsylvania. Does he think experts can be bought? "Generally, it's true. There is no area of expertise where you cannot find an expert to give you what you want. It's a function of the adversarial system, and out of the adversarial system comes a better approximation of truth." Not according to John Sansone, a former attorney who was an alternate juror in the recent expert-laden nanny trial of Louise Woodward in Cambridge, Massachusetts. "It amazes me that we even have to remind ourselves of this, but the game is not about the truth; it's about winning," he observed. "This is not the way to develop truth and understanding. In fact, it obscures the truth." Professor Robert Ward of the New England School of Law also pinpoints the adversarial system as responsible. "The adversarial system is in apposite to the scientific model, which focuses on protocol. As long as protocol is followed, then accept the answer! But lawyers are trained to question everything, and not accept anything," he told us.

What Went Wrong?

"Doc, I need you to write that he's been traumatized/permanently disabled! she's sick because of her husband/this happened because he stopped taking his medicines."

Personal physicians and therapists typically have no qualms advocating for their patients. But do courts always regard these submissions as biased as the attorneys who admit them into evidence? Hardly. And the way treating psychiatry approaches the patient is fundamentally distinct from forensic psychiatry. Treating therapists presume that patients are essentially telling the truth; forensic psychiatrists should presume that the side that retains them is essentially not telling the truth, until they prove otherwise. It's the presumption of trust vs. the presumption of mistrust; how can this different frame of reference not affect the credibility of testimony to the court? The inherent advocacy of the treating therapist makes her the most unwitting—and perhaps the most ardent—of hired guns.

One of the most embarrassing and bizarre examples of this occurred during the Los Angeles trial of Lyle and Erik Menendez, accused of murdering their parents. Psychiatrist William Vicary, who had treated Erik, was forced to admit on the witness stand that attorney Leslie Abramson asked him to rewrite a page of his notes to exclude a passage. "She said this was prejudicial and it was out of bounds," he testified. One of the more sobering outcomes was the professional humiliation of Dr. Vicary; Ms. Abramson, while not a likely guest speaker at the American Psychiatric Association, maintains her respected stature in the law community

Forensic professionals cannot fall back upon the excuses of advocacy or ignorance. But when retained, they know they are dependent on their relationship with the attorney for future business and good will. So even at an unconscious level, there is the desire to please. The early discussion often sounds like this:

"Here's what I want to do with this case, Doc. . . . And depending on what you say the judge is willing to say no jail time."—or—"Whatever you come up with, I know the other side wants to settle."

Who can resist that? And so the seduction begins. The well-schooled forensic professional will usually remind the attorney up front, "I'm not for sale/I'm not a hired gun." And as on Eddie Haskell's cue, the attorney will respond, "That's exactly what we want, Doctor . . . we want you to just tell the truth."

And even at the stage of sharing conclusions with the attorney the exchange resembles the following:

Doctor: I think this tastes salty.

Attorney: Can you say this tastes sour?

Doctor: No.

Doctor: The world is round and the sky is blue.

Attorney: How about the world is an ellipse?

Doctor: No..

Attorney: Er . . . well. at least the world is oval?

Doctor: No.

Attorney: Come on Doc, you're busting my chops!

Doctor: I beg your pardon?

Attorney: Don't get me wrong, doctor, I want you to tell the truth, but not even the world is oval???

Doctor: I'm sorry.

SILENCE.

Doc: Well, I can say the sky is blue-grey. . . .

Attorney: That'll do.

Is it the truth, or is the expert responding to the pressure? Only the expert knows for sure, and only if he is willing to be honest with himself. If you feel queasy that's a good reason to examine whether you believe the sky is blue-grey with a reasonable degree of psychiatric certainty. Dr. Gutheil warns experts to beware of a phenomena he calls forensic "countertransference." "The expert has loyalty, identifies with, and wishes to be helpful to the attorney. Just like when you're treating a patient, keep your biases aside," he said.

---

---

Sometimes the slide into this ethical Gomorrah is more subtle. Did you really look for all the material you could have examined in order to come to an objective conclusion, or do you know just enough to conclude what you need to help the attorney who retained you? When the expert hears she's asking too many questions, that's usually an indication she is doing the right thing.

Attorney: Doc, do you really have to call these people? We're way over budget.

Doc: I'll tell you what . . . I won't charge you for any more information review.

Attorney: Could you hold on a minute?

SILENCE

Attorney: uh . . . hello? Doc? Yeah, uuh . . . we need the report by tomorrow.

Is it just a matter of the consultant being eager to please? When the bill for hours expended mounts, pressure also builds on the expert to arrive at a conclusion that prompted the attorney to refuse the bill? This is how, in theory, the expert paid for his time is pressured to be paid for his opinion. And this is why many forensic psychologists and psychiatrists ask for their fees up front. But ethics has its price. I still remember reversing an opinion on the witness stand when confronted with contradictory information. The attorney who had retained me never spoke to me again.

The psychiatrist, as ignorant in court gamesmanship as the attorney is in the behavioral sciences, may have little recognition of what the lawyer is up to. Some attorneys will retain an expert just for the purpose of provoking the other side. They may know they have no case, but does the expert, before he has an opportunity to review the materials? Unfamiliar attorneys may provide an expert with materials to review, only to call later at the very point that a psychiatric claim was recognized as frivolous and say, "Thanks for your help, Doc . . . we settled." Dr. Gutheil offered his own example. "I know a respectable attorney who told me there are cases so bad that he just needs someone who will nod his head when he tells him to."

Professor Morse takes a more pragmatic view. "It's efficient for lawyers to find someone whose persuasion will be on your side." Family law attorney Charles Mathison of New Jersey laughs at the notion that an attorney would seek unbiased expert testimony. "The bias is a given. Courts understand that. What they want to know is, does the conclusion make sense?"

Many consultants we spoke to defended the expert's role. "You are supposed to be biased in your opinion with those who hire you," said Dr. Emmanuel Tanai, Clinical Professor of Psychiatry at Wayne State University in Michigan. "You must demonstrate that the other side is false, based on the evidence. How else are you going to show your side of the story?" And with expressions like "maybe, not necessarily possibly and consistent with, among others', the expert witness effortlessly and invisibly becomes a moving target at cross examination. Dr. Danto, one of those who took a differing view, lamented the manipulation of psychological tests in the courtroom. "I have seen, on more than one occasion, someone take an MMPI interpretation that says, 'suggestive of drug abuse' and use that on the witness stand to assert that someone is a drug addict."

---

---

Attorneys may create the hired gun, but the expert learns to load and reload quite well. The frightening truth of Hagen's book is that an expert can get up on the stand and say virtually anything and with little, if any accountability.

"The really good hired guns are very sophisticated. They come up with outrageous outcomes without lying, like magicians!" explained Dr. Zeigeur "Lawyers don't create the hired gun, argues Dr. Danto. "It's a moral issue." And no oversight to testimony places even greater burden on the testifying experts moral compass.

How do you recognize the hired gun? Well, you don't. She does not rise from the sea like the Loch Ness Monster, but ambles in like the doctor next door. Who can predict what follows? And sometimes with the best intentions.

Blinded by My Own Magnificence

"We're seeing more and more of the fringes twisting the science . . . more and more experts are out there plying their trade, not as impartial fact evaluators, but as advocates."

Even with our understanding of the brain rapidly developing, our understanding of behavior remains relatively limited. In areas where the law seeks answers from behavioral scientists, the answers can be decidedly absent.

There are great rewards to being the definitive authority on a topic. Forensic psychiatry is full of syndromes described by professionals who encountered apparent patterns in circumstances, perpetrators, or victims. Some of these have been subsequently researched to the point of wider acceptance. In this regard, Rape Trauma Syndrome and Battered Woman's Syndrome have gained wider acceptance, even if they do not yet find distinction in the psychiatric diagnostic manual, DSM IV. Disorders in the DSM have been carefully studied, and if proven to be misunderstood, redrawn for future generations of classification. Do courts really appreciate this? Do judges and juries recognize how little research has been done in Battered Woman's Syndrome, Repressed Memory or on stalkers, and neonaticide mothers? How about Sexual Abuse Syndrome, Road Rage Syndrome, and Vietnam Syndrome? Or Antisocial Personality by proxy or television induced violence?

Larry Seigel, M.D., a forensic psychiatrist in Rockland County New York, refers to, "'Professional malingerers'. The expert makes up the illness," he said. "Their goal is to have the patient be sick with that diagnosis." One of the combatants in the repressed memory debate, Elizabeth Loftus, Ph.D., wrote of the zealotry of the position, "the advocates of repressed memory do not offer scientific evidence for their claims. Indeed, they deny the value of, and are hostile to, testing and experimentation, which might result in further victimization.. their arguments are as self-sealing as those advanced by the theologian and the creationist . . . I had to keep repeating to myself . . . it's not about ideology; this is about memory memory, memory." (The Myth of Repressed Memory 213 (1994)).

Once the seminal journal article is written, however, the author becomes an expert even if the syndrome is but a theory And the creative attorney comes a' calling, knowing that professional believes in the inviolable integrity of his theory. That attorney needs nothing more. The hired gun has brainwashed himself; and why not? The more visible the theory, the more likely research funding will be made available to "study" it. This is where the profit motive of research merges with corruption on the witness stand. How often is this conflict of interest explored for the benefit of the trier of fact?

Barbara Stein, M.D., a forensic psychiatrist in Palm Harbor, Florida, recognizes the professionally motivated hired gun as someone who renders opinions "based on his own clinical experience, but ignoring the literature or the accepted standard...his work is predictable, and not based on the facts of the case." And as Steve Simring, M.D., the New Jersey forensic psychiatrist who examined New York Chief Justice Sol Wachtler and disputed his insanity claim by terming him lovesick, added, "they are well known, but the jury is always a panel of 12 to 16 new faces." "In the case of a true believer," as he terms the zealots, "the Jury doesn't know that person is a true believer."

Maybe the expert doesn't know either. "Whether someone is purposefully lying, or just deluding himself—how can I tell? I don't know that," explained Dr. Seigel. This distinction between the unconscious and the conscious hired gun was pointed out by many. Professor Morse uses the term 'persuasion.' "There are people whose view of mental health will lead them to be on one side more than the other... when there is room to maneuver, a person's predisposition will have them on one side or the other." Attorneys aware of professional biases can then, with a little homework, select an expert with assurances that they can get the testimony they want without the hard sell. Dr. Tanai referred to this practice as "akin to doctor shopping."

Setting Limits

Just how reliable must an expert's testimony be? For 70 years, the Frye standard stood watch at the witness stand. Expert testimony had to be deduced from a well-recognized scientific principle or discovery sufficiently established to have gained general acceptance in its field.

Five years ago, the U.S. Supreme Court authorized trial judges to make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid. The factors to be considered include, but are not limited to, (1) whether the theory or technique in question can be, and has been, tested, (2) whether it has been subjected to peer review and publication, (3) its known or potential error rate, (4) the existence and maintenance of standards controlling its operation, and (5) its widespread acceptance within the relevant scientific community (the Frye standard). [See Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2797 (1993)).

Daubert has been cited at least 1,860 times in the past four years, according to Judge Kennedy "Clearly people are struggling to work with this," he said. "We're all feeling our way." The Daubert decision reigns over but does not resolve a familiar dilemma. How do judges ensure that the science is reliable enough to hand to a jury?

Judge Kennedy believes that "junk is getting through and getting in." And the court shares some of the blame. "We [judges] think the process and discipline of science is beyond us. That's not true. But it takes a lot of work to prepare your brain for the science," he said.

---

---

The hinges of the admissibility gate are greased by the current standard of appellate review. Judge Kennedy pointed out that when judges keep science out, "our decisions are looked at more stringently. This is scary to judges." The Supreme Court will likely be faced with determining whether the standard of review should be an abuse of discretion, or a presumption that the trial judge made the wrong decision.

Political Spin

Political biases, while less necessarily profitable, contaminate forensic testimony as well, and in various ways. With very emotionally charged policy/legal issues like the sex offender classification, juvenile sentencing, victimization, overreliance of psychiatry on medication and forceful treatment, child custody and sex harassment, this is especially notable. It is almost impossible for any thoughtful consultant to not have personal feelings about these quite divisive matters.

Political bias in the institutional hired gun has received attention with revelations of doctored evidence and falsified reports by several medical examiners and other employees of state crime labs. One of the most notorious of these, serologist Fred Zain, was eventually indicted for perjury in both West Virginia and Texas.

Mental health has its own version of the institutional hired gun. Forensic hospitals make administrative decisions about future dangerousness with the unstated standard: The patient must prove, beyond a reasonable doubt, that he has no potential to embarrass the hospital by doing something dramatic enough to land on the front page of the newspaper; otherwise, he shall not be released.

---

---

This makes for creativity by staff whose courtroom testimony and reports can only be termed historical revisionism. We'll explore this phenomenon more closely in the January issue of The Forensic Echo.

In the best of all worlds, the expert is introspective and even avoids involvement in areas in which she has a more personal connection. All too commonly, however, the expert utilizes the vehicle of the witness stand to effect macro sociopolitical change. The most notorious example of this was the Texas psychiatrist James Grigson, M.D., who regularly and predictably branded defendants dangerous sociopaths likely to reoffend, even with only cursory examination. Even more common is consultant-advocates in capital cases that evaluate for the all-encompassing mitigating circumstances to prevent a death sentence. One such psychologist colleague boasted, "I've worked on quite a few of those cases . . . we haven't had one die yet."

We? Even those who feel that advocacy is native to the forensic consultant concede this does not rise to the level of the attorney. But consultants are people, too, and will not be deterred from what they may justify as public interest. Dr. Gutheil recalled an expert who said that she always diagnosed post traumatic stress disorder in sexual misconduct cases "because it was so important to give victims compensation."

A jury may expect bias from an expert, but will value balance. Juror Sansone recalled how he dismissed the testimony of one defense expert in the Woodward trial because all of his testimony for the past 10 years was on behalf of the defense. "As far as I'm concerned, he was a hired gun," concluded Sansone.

It's Not Easy Seeing Green

When something smells, follow the money trail. You'll see that old adage at work here too. Darwinian evolution is coming to forensic psychiatry, and the fittest may ultimately include those willing to take a dive if the price is right. Irrespective of fame or stature, you will sadly find these when you least expect it.

The changing economy of health care has had an effect on a profession dependent upon reimbursement from insurance companies. "Managed care has been hammering clinical psychologists," said Dr. Otto. "Psychologists being pinched by managed care see forensics as a way out." He pointed to the proliferation of ads for training programs seeking to attract enrollees by proclaiming "Are You Tired of Being Pinched By Managed Care? Enter Our Program!" Beware, warned Dr. Otto. "This can result in bad practice. People go to a workshop and think they are experts."

Professor Ward, who warns his students to be mindful of the expert who will say exactly what the attorney wants her to say, concedes, "I may be idealistic, but I'm not naive. Money gives you greater choices. It's analogous to 'the person who can pay more money gets the better lawyer' That's not always true, but in some cases, yes.

Alan Goldstein, Ph.D., chairs the continuing education program for the American Academy of Forensic Psychology. He does not believe that attorneys deliberately look for a gun to hire.

"Jurors see through that," he offers. But juror Sansone is not so sure. "'Who has the expertise to be able to critically evaluate the credibility of the testimony? I don't know on what basis a juror is supposed to make choices between two sets of diametrically opposed opinions," he wondered. How is a jury to know whether someone is a hired gun?

Dr. Goldstein downplayed the incidence of disingenuous testimony. "In psychology, we might reach a very different assessment of a person based on the same data," he said. "To the extent that opposing experts disagree, it increases skepticism." If what the expert does is to make a living from testifying, he or she will find themselves viewed with disdain, both by the jury and the profession.

Attorney Robert Sherman is a partner at Eckert, Seatnans in Boston. He believes that revealing the number of times someone has testified can have a devastating effect. "It shows a loss of objectivity and a preconceived bias," he said. Dr. Gutheil makes a similar point. "If you can't afford to turn the case down, it will distort your objectivity," he suggested. "You have to be able to say, this is a meritless case' without fear of seeing your kid's college education go out the window." Testimony for cash, like bribery, is of short-term benefit. Attorneys who know they can buy testimony from an expert may never consult him again—except when no one else is around.

Enforcing Conscience

How can hired guns be eliminated? Professor Morse advises attorneys to ask two questions: (1) What is the clinical or scientific status of the observation and (2) Are the observations legally relevant? These determinations can only be made on a case by case basis. But judge Kennedy feels that attorneys often do not have the resources to do this.

The best tool for detecting pseudoscience remains an effective cross examination. Too often, however, attorneys are sloppy in preparing for the scientific rigors of a trial. Attorney Sherman cautions litigators to thoroughly research the expert and his or her writings as well as the generally accepted science of the field. Attorneys may not fully master the science needed for adequate cross examination, so involvement of a consultant to monitor his colleague can be invaluable. The mere presence of a credible observing expert in the courtroom may be enough to discipline even the most brazen reinventor of science. The witness who then recognizes she will be demolished on cross examination is more cautious. An observing consultant may also provide essential literature references to be introduced on cross examination to further illustrate the self-serving and dishonest logic and science that underlies the testimony of the hired gun.

In some countries, panels of experts are set up to address medicolegal questions such as malpractice claims with plurality—and therefore, perhaps more credibility. But are these panels not also dominated by the most forceful presence? Are they also not vulnerable to institutional pressures, particularly in malpractice cases, where they may be particularly willing to identify with a colleague?

Court appointed experts undoubtedly have the natural inclination of being middle of the road. The opportunity to work for the judge is particularly satisfying, as the flow of information seems to be less impeded and more complete—leading to a more honest evaluation. The piddling fees paid for such consultation weed out those motivated solely by financial gain. "An ethical expert should tell the attorney, 'You don't have a case, go home.' And the attorney should accept that," advised Dr. Gutheil, himself airlifted from Boston to help the court resolve a contentious competency question before the murder trial of John Du Pont.

"The profession is responsible for policing itself, and we've done a terrible job of it. The ultimate gatekeepers are judges and attorneys, but they're ignorant and don't know if what they're hearing is a bunch of garbage," admitted Dr. Otto. Fellow Floridian Dr. Stein observed, "You can call the Licensing Board, but people don't want to do that. I haven't come up against a situation where the hired gun is reprimanded." Dr. Hagen feels oversight "could affect revenue collection and the profession would never support it." Where the field can't police itself, punishment becomes the answer, and we are perhaps a few high profile trials away from perjury charges as part of the solution.

Hired guns are well known to colleagues, who nevertheless maintain omerta, perhaps aware of our own glass houses. Some of these shining examples have gained prominence in ethics education. Dr. Zeigeur sighed, "You can't get rid of them; you'll be getting rid of the best."

But some are more optimistic. Dr. Stein herself cites that "more people are getting training, and hired guns are being torn apart." And as it should, research may provide the answers. Garrett Berman, Ph.D., a forensic psychologist and jury expert on the faculty at Roger Williams University is developing a program to hold expert testimony accountable. He is applying outcomes of inconsistency in eyewitness testimony to this area.

---

---

Alas, the field that doesn't discipline itself is therefore sullied by the sins of our brothers and sisters. It is this same type of ethical constipation that tacitly accepted sexual relationships with patients for so many years. Unfortunately, we leave this subject questioning the complete integrity of a field so fascinating and so urgent. All the more reason to frequently revisit this issue in ourselves and in those we train.