How to Avoid Ethical Pitfalls as a Mental Health Expert Witness and

Consultant(Laws, Regulations, and

Procedures)

Dr. Anthony J. Fischetto, Ed.D.

Forensic Psychologist

Swimming with the Sharks

Knowledgeable and Up-to-Date on:a. the laws, regulations, proceduresb. latest researchc. latest assessmentsd. rules of evidence

Integrity: Objective, Impartial, Unbiased, Trustworthy

Able to Communicate the Findings

Qualities to Have as a Forensic Expert:

Dr. William H. Reid, in the Journal of Psychiatric Practice, Nov. 2012, Vol. 18, No. 6 says,An expert’s opinions should be expressed to a “reasonable degree of medical or psychological certainty.” That legal phrase means “more likely than not.” “A great many experts misunderstand this simple, crucial definition, probably because it differs from the way clinicians usually view “certainty.”

Stating an Expert Opinion

Make sure you know about Expert Opinion vs. “Possibility” or

Speculation

The main difference is in the role of each one, not necessarily the level of forensic expertise.

Therapeutic/Treating Clincian

vs. Forensic Clinician

Treating Clinician

Forensic Evaluator

The mental health practitioner

The attorney or the court

Therapist-patient privilege

Attorney-client and attorney work-product privilege

Supportive, accepting, empathetic

Neutral, objective, detached

Therapeutic/Treating Clincian

vs. Forensic Clinician

Therapeutic/Treating Clincian

vs. Forensic Clinician

Therapy techniques for treatment of the impairment

Forensic evaluation techniques relevant to the legal claim

Diagnostic criteria for the purpose of therapy

Evaluation and hypothesis testing are related to the legal issue

Information is drawn from the client with little scrutiny

Information is critically scrutinized and supplemented by collateral sources of information

Treating Clinician

Forensic Evaluator

Therapeutic/Treating Clincian

vs. Forensic ClinicianTreating Clinician

Forensic Evaluator

Patient structured and relatively less structured than forensic evaluation

Evaluator structured and relatively more structured than therapy

A helping relationship; rarely adversarial

An evaluative relationship; frequently adversarial

Therapeutic/Treating Clincian

vs. Forensic ClinicianTreating Clinician

Forensic Evaluator

Therapist attempts to benefit the patient by working within the therapeutic relationship

Evaluator advocates for the results and implications of the evaluation. Assists the trier of fact (judge/jury)

Therapeutic/Treating Clincian

vs. Forensic ClinicianTreating Clinician

Forensic Evaluator

The basis of the relationship is the therapeutic alliance and critical judgment is likely to impair that alliance

The basis of the relationship is evaluative and critical judgment is unlikely to cause serious emotional harm

Lack of specialized forensic training

Ignorance of specialized psycholegal knowledge

Advocacy for a client or advocacy for a particular agenda as opposed to remaining neutral and objective

Clinical Practitioners Who AreNot Trained Well In Forensics

Failure to use or know about assessments for malingering and its importance

Assuming the attorney will provide the expert with the necessary legal, ethical, and professional information

Clinical Practitioners Who AreNot Trained Well In Forensics

Assuming different jurisdictions are similar in laws and how the laws are implemented

Not appreciating the different levels for the burden of proof between the disciplines and within the legal system

Clinical Practitioners Who Are Not Trained Well In Forensics

Economic concerns – Psychologists are prohibited from working on a contingency-fee basis and may feel that their services will not be used if they do not perform as the hiring attorney requests.

Entering into multiple relationships, such as Expert Witness and Consultant

or Expert Witness and Therapist

Clinical Practitioners Who AreNot Trained Well In Forensics

Failure to understand the unique issues associated with confidentiality and privileged communications in forensic work

Failure to appreciate the unique role assessment plays in forensic settings and using inappropriate tests

Inadequate documentation and failing to recognize the need for meticulous notes

Clinical Practitioners Who AreNot Trained Well In Forensics

Failure to use all appropriate sources of information expected in a forensic evaluation, such as interviews with third parties

They may not know how to present themselves in the courtroom.

They may not know how to communicate with the trier of fact.

Clinical Practitioners Who AreNot Trained Well In Forensics

Treating Therapist vs. Expert EvaluatorImpartial, Objective, Blurring of Roles

Forensic Report Checklist

Presenting the Evidence

Dr. Anthony James Fischetto, Ed.D. Forensic Psychologist

Diplomate in Forensic Psychology

475 Philadelphia Ave., P.O. Box 36, Reading, PA 19607

Office: (610) 777-3306 Mobile: (610) 413-0375

Fax: (610) 777-9494 E-mail: afische101@aol.com