All right, why don't we start, welcome. This is a forensic psychiatry seminar, surviving and thriving under cross-examination. Now sometimes cross-examination can feel like you're in the hot seat here. Who here has been cross-examined? You raise your hand. Oh, a good number of you. Who here has enjoyed cross-examination? Not very many, okay. You do, I know that. Here's who we are. So I'm Steve Nofsinger, and my main job is I run the Forensic Psychiatry Fellowship in Cleveland. And together with my colleague here, I teach a course on law and psychiatry at the Akron Law School. And through my private practice and other work, I've testified about 225 times, which means I've been cross-examined that many times as well. So I've made a lot of mistakes, and I'm here to share with you those mistakes in hopes that you won't make the same mistakes. So my colleague here is Dr. Ashley Vandercar. Dr. Vandercar was a practicing attorney, and then she saw the light, went to medical school, crossed over, and has been a psychiatrist and a forensic psychiatrist now for a number of years. And our objectives today are to understand how an attorney thinks about and prepares for cross-examination, for you to learn 10 cross-examination techniques used by attorneys and how to counter those techniques. And I will tell you that we're gonna do better than 10. We've got at least 30 or 40 techniques we can discuss if we have time. And also to understand how to write a forensic report that will minimize the potential for cross-examination. No disclosures, and if you want the handouts, if you haven't already seen this, and I'll put this up a couple times during the course of the talk as well, but it's all there for you. This ordinarily is a four-hour talk, so we're squeezing this down into 90 minutes, so I'm gonna apologize in advance if I skip over some things or seem to go fast because there's a lot of material here today. But it's all in the handout. Cross-examination, according to Black's Law Dictionary, the questioning of a witness at trial or hearing by the party opposed to the party who called the witness to testify. The purpose of cross-examination is to discredit, and I'll emphasize that, discredit the witness before the fact finder. So sometimes it feels like this. Who wants to have their professional opinions, their credentials, and even their personal lives scrutinized by a hostile examiner in public? Yet here we are testifying sometimes and being cross-examined. Now on the right, forensic psychiatrists testify quite a bit in these various topics here, and as I put this talk together, I was thinking about how general psychiatrists might testify and in what applications. So generally, when they're in hearings for commitment or involuntary medication, they might be subject to cross-examination. Also, if they're a defendant in a malpractice case, or less commonly, a fact witness called for their patient's lawsuit. I'm gonna show you now some video of a psychologist who's facing some hostile cross-examination. This is in the trial of Jody Arias, and this is prosecutor Juan Martinez cross-examining a psychologist named Alice LaVoillette. I used that as one of the, that is the clinical interview that I did, right? Yes or no, that is the clinical aspect of your practice, correct? It is a clinical aspect of my practice. And in this case, 44 hours, that's the clinical aspect of this evaluation, right? I'm not sure what you mean by the clinical aspect. Well, a clinical interview, you know what a clinical interview is, right? Of course I know what a clinical interview is. All right, then we seem to be having problems with that. With regard to a clinical interview, ma'am, isn't that a situation where you sit across from an individual, and you talk to them about the issue that is at hand, isn't that true? You interview them, you ask questions, you do an assessment. So when you are interviewing, you're not talking to them, right? Mr. Martinez, I think you're- Yes or no, my question is, are you talking, yes or no? Mr. Martinez, are you angry at me? Ma'am, is that relevant to you? Is that important to you? Ladies and gentlemen, please refrain from laughing in the courtroom. Is that important to you whether or not the prosecutor is angry with regard to your evaluation? Does that make any difference to your evaluation, whether or not the prosecutor is angry, yes or no? So it's never good when the judge has to tell the courtroom to not laugh when you testify, but I give her a lot of credit. She was dealing with a very hostile cross-examiner there, and she did her best. Just a few teaser questions here to whet your appetite. I can just think to yourself how you would answer this. On cross-exam, the effective witness concedes nothing, much, everything, or only what they have to. I'll tell you in advance, the answer is much. You concede much and only stick to your guns and the critical points that will enhance your credibility. Which topics are usually not asked about during cross-examination? Your credentials, personal life, the methodology, licensure, or prior lawsuits? Generally, your personal life is off-limits, but some attorneys will try and ask you about it, and hopefully the retaining attorney will object, and that will be not asked about. And finally, the primary goal of the cross-examiner is to embarrass the expert, to convince the expert that he or she is wrong, to show the jury that the expert is wrong, to control the expert, or to introduce doubt about the expert's qualifications. Well, as Dr. Vandekar will tell you, the answer is for, to control the expert witness. And with that, Dr. Vandekar. Good afternoon. So I wanna talk a little bit about cross-examination. I remember the first time that I was cross-examined as a psychiatrist, and how nervous I was. I purposefully picked out my clothes so that the sweat stains would be hidden. I walked out of there drenching wet. It was such a scary experience. But in contrast, I remember the first time that as an attorney, actually I was still in law school in a clinic, that I cross-examined a witness. It was so much fun. My goal going into that cross-examination was to try to get this witness to get angry at me, to try and get her to start screaming at me, to destroy her credibility because of the type of case that it was. And I succeeded, and won the case, and it was great. But as a psychiatrist, if you know what to expect going into cross-examination, you can also enjoy it. You can survive it, and you can thrive on it. The concept of cross-examination is not new. If you look at the biblical story in the Book of Daniel, you see one of the earliest cases of cross-examination and confrontation of witnesses in the Book of Daniel related to Susanna. Susanna was his virtuous wife, and depending on who you ask, it was likely around 600 BC. And one day, these two judges came to her house, and they propositioned her, wanting to have intimate relations with her. They told her that if she refused, they were going to accuse her of adultery. And at the time, what was the punishment for adultery? Do you guys know? Death, stoning to be precise, exactly. But she refused to capitulate. They went ahead and they accused her, first privately, and then the next day publicly. And as she was being led out to be stoned, saying that they had borne false witness to her, someone intervened. The person who intervened was Daniel. Daniel intervened and he called for the two judges, the two men who had claimed that she had actually slept with someone else, just like they threatened that they would do if she refused to have affairs with them. And so he said that they needed to be cross-examined separately. And he asked them a key detail to their story, which is under which tree she had allegedly had this relation with. And they gave different answers. And based on that, she was not put to death and she was saved. In the modern day, in our Constitution, we have something called the Confrontation Clause. This is in the Sixth Amendment. But it has been interpreted by the United States Supreme Court to include four specific things. Physical presence of the witness, oath, cross-examination, and observation of demeanor. This is where cross-examination and the right to cross-examination comes from. A famous legal scholar named John Harry Wigmore once said that cross-examination is the greatest legal engine ever invented for the discovery of truth. But another part of that quote that people often forget is that he also mentioned that a lawyer can do just about anything with cross-examination. He can make it look like the truth is actually false. And that's what it feels like as a psychiatrist or a forensic psychiatrist when you're testifying and someone is cross-examining you. Because you know what you were trying to say. But the questions that you're being asked on cross make it sound like you're wrong. As Dr. Nofsinger had mentioned, there's two real contexts that as a psychiatrist you can end up on a witness stand. As a fact witness, for instance, if your patient is suing someone and trying to get psychiatric damages and you were their treater, and you were then asked to testify what you saw, what you experienced, what transpired with the patient. Or as an expert witness, when you were giving an opinion related to a patient. Competence to stand trial, sanity at the time of the act. There's lots of different topics. When you walk into a courtroom, this is what you see. Reassuring, right? Looks appropriate, people in suit jackets, not that bad. But when you see this, I want you to realize that this is what it actually is. It is a boxing match that is dressed up to look harmless, to look like people in suit jackets. And the reason is that this is by design. The American justice system is designed to be adversarial. You have two parties, one on either side, attorneys on each side. And it is meant to be an adversarial boxing match with the trier of fact, the judge or a jury, making a decision about which side is right. And so the attorney is gonna be there advocating for their side using evidence, direct testimony, cross-examination and strategy. Now what this means for you is that if you were there and you were a witness, the attorney that's asking you the cross-examination questions is not on your side. They are against you. They are likely trying to destroy your credibility. And knowing that going into it is one of the key factors to being able to survive cross-examination. Because the art of advocacy for an attorney is gonna be presenting and emphasizing the helpful data and explaining away the harmful data. And think about that, right? If the attorney's on the opposite side of you and you've said something that they don't like, that doesn't help their case, their goal is gonna be to try to show that you were not a credible witness, that what you're saying is not accurate. And your job is to keep calm and embrace it. And that's what we're gonna try and give you the skills to do today, to keep calm and embrace it. So that when you get up on the stand and you're being cross-examined, you can present just like this. Is that an interview that you actually gave with Katie Couric? Is that an interview that I actually gave with Katie Couric? Yeah. What's her name again? Well, that's not the question. What's her name? Pete Ross. Huh? Pete Ross. Pete Ross, that's a stupid-ass question. You just saw me on there giving an interview with her. Okay, so that was you. Okay, fine, not like that, okay? Don't do that. That's the opposite of what you should do. But you get my point. How you present is key to how you are accepted and whether people believe what you're saying. I don't know about you, but when I know what to expect, when I know exactly what's gonna happen next, I find that I'm a lot calmer and a lot more able to appreciate and do well in a situation. So this is the layout of what to expect in a courtroom or in a hearing when you testify. You're gonna be sworn in. Potentially, there might be voir dire. That really depends. They often stipulate to your credentials, in particular with civil commitment hearings. There's a direct testimony. Now, we do an entire lecture sometimes on direct testimony. Direct testimony is your opportunity to tell your side of the story or to give your opinion, to feed it to the court so that they hear what it is that you're trying to say. That's the opposite of cross-examination. On cross-examination, you're answering questions from the opposing attorney. After you get done with that, there's an opportunity for redirect. This is one of the reasons why you should never feel like you have to prove yourself when you're being cross-examined. Sometimes you'll need to, but you wanna remember that there is theoretically, if you have a good attorney, an opportunity for them to rehabilitate you when they come back and ask you questions again on redirect. One of the things that they teach us in law school that they don't necessarily teach you is that how credible a witness is depends on how they are perceived. So how you come across, how you're dressing, how you're talking, your demeanor, all of those things are going to determine whether the trier of fact, judge, jury, believe you. I often watch civil commitment hearings when I'm waiting my turn to give a civil commitment hearing or in other contexts, and I sometimes get surprised at doctors that I know, that I really respect, who become argumentative when they're cross-examined. And we're gonna talk a little bit later in Dr. Dofzinger's even more about ways to avoid that, to avoid becoming argumentative, because you both don't need to, and what happens to your credibility when you do that? It goes down, right? When you get angry at the cross-examiner, your credibility goes way down. The interesting thing is that the American justice system is created assuming that people, that judges, that jurors can act as lie detectors. Raise your hand if you think that judges and juries are good lie detectors. Me neither. People do not have, in general, good skills at assessing what is true and what is not true. And yet, our justice system puts that responsibility in the hands of judges and juries. So when you're testifying, they have to decide whether they believe you or whether they don't believe you. Demeanor is what they use to assess that. Demeanor are all of the things that don't show up in the transcript. It's what you look like, how you comport yourself, how you're groomed, your body language. Are you sitting there like this on the stand, like all nervous? Are you moving back and forth? Are you rocking? Are you shaking your leg? Are you twiddling your thumbs? All of these things are gonna make you look less credible and less believable. Your voice tone. When they do studies looking at expert witness credibility, there's a number of different factors and there's lots of studies on this. But some of the key factors that they find that are very relevant are likability. Are you likable? You're more credible if you are likable. Are you trustworthy? This is something that's gonna include your bias as well as, to a certain extent, any prior contradictions that you've made. Your confidence. But not too much confidence, right? If you're cocky and overly confident, that's gonna actually make you less credible. Having just the right amount of confidence. And knowledge. Knowledge on the specific subject that you're talking about, whether that's civil commitment, medications over objection, sanity, whatever it might be. Think about who's on the jury. A jury's a cross-section of America. You might have a construction worker, elementary teacher, store clerk, administrative professional, sometimes a doctor. When you testify, you need to act like they expect a doctor to act. You need to comport yourself like they expect a doctor to comport themselves. Attorneys are expected to be argumentative, right? When you see a kid and you see a kid arguing, what do you say to the kid sometimes? You're gonna make a great lawyer someday. I know my parents at one point told me that because I love to argue. But doctors, they're not expected to argue. They're expected to be doctors. Keep that image in mind when you testify. The experience in testifying is very different on direct, where you have an attorney who likes your testimony, than on cross-examination, when you have an attorney that, by definition, does not like your testimony. For the attorney, the goal in both direct and cross-examination is to control the witness. If the attorney fails to control the case, especially on cross-examination, then the attorney's gonna repeat things that are harmful to their theory of the case, and they're gonna explain away things that might have been said by the cross-examining's own expert in the case. Cross-examination, just to kind of, as a reminder, is meant to review the topics of direct examination. So let's say you're at a civil commitment hearing, you're testifying about why this patient is mentally ill and why they meet the criteria in your legal jurisdiction for civil commitment. Then you're gonna have the cross-examiner that comes and that asks you questions trying to show that that is not accurate, that this person does not meet criteria for civil commitment. So cross is going to review direct topics. It's a little bit different in context other than civil commitment, because then you have two experts, a lot of times. So when you get the cross in that context, part of the goal of cross-examination is to bring out those specific parts that are favorable to the cross-examining attorney's side, to bring out favorable information that you might know that you might not want to say that helps their side, and then to discredit or minimize anything that you said that goes against their theory of the case. Attorneys are taught many things, but two key things regarding cross-examination are to always know where in the narrative a witness's testimony's gonna fit. So when an attorney gets up and they cross-examine you, and it's in a trial, for instance, they know what they want to get out of you. They know what it is and where you fit in the theory of the case. There's something that you have, either that they want to bring out to help their side, or there is something that you have said that they want to discredit because it works against the theory that they are attempting to put forth in their case. The other thing that attorneys are taught is to never ask an opposing witness a question that they do not know the answer to because that is not what you were supposed to do in general on cross-examination. There's exceptions. If there's no good or bad answer, for instance, if I were to ask you, doctor, do you remember whether you left the hemostat in your stomach before you closed it back up? Would you have any answer that would sound good? No. If you say no, I don't remember, you're forgetful. If you say yes, I remember, that means you purposefully left it in there. So that's an example of when you can ask a question that you don't know the answer to because no matter what the answer is, it doesn't really matter. The goal of the attorney on cross-examination is gonna be to fit the witness into the case narrative. Okay, I already said that, but how? There's two different ways that can be done. One is gonna be through constructive cross-examination where they're getting new information, and the other is going to be through destructive cross-examination, when they're trying to destroy your testimony. In doing either of these, the way to go about it is to make sure that the questions go down a specific path. We often do cross-examination of the fellows, and when I write my cross-examination questions out, I write out every single question that I'm going to ask. And I go through them, and I categorize them in terms of what I'm trying to either bring out or I'm trying to destroy in the process of cross-examining them. And you use a lot of statement-like leading questions. Isn't it true, doctor, that you only met with Mr. So-and-so for seven minutes on one occasion? Isn't it true, doctor, that everything else that you're relying on is what her mother told you? Isn't it true? And you go down this line, and you're trying to get yeses and responses to it. And as the cross-examiner, I know the answers to the questions before I ask them, because that is how you make sure that your cross-examination is effective. So we have constructive cross-examination, where you're bringing out testimony that's consistent with a theory of a case. What's an example of that? Let's say that you have a sexual harassment case, and it's involving psychic damages. So on direct, the plaintiff's expert testified that the plaintiff had psychic damages from sexual harassment, which aggravated a pre-existing panic disorder and PTSD. So now, if I were cross-examining, I don't like the first part, but I like the pre-existing disorders, right? So those would be questions that I would ask a great deal about, because I'm trying to bring out favorable statements that are consistent with my theory of the case and corroborate my own witness's testimony. Destructive cross-examination is going to attempt to eliminate the impact of statements that were not on our side's favor. You do that by destroying credibility. How do you destroy credibility? There's a lot of different ways to do it. One can be alleging that the witness didn't perceive things correctly, or that they've forgotten the truth. I'm attempting to impeach your memory of what happened and show that what you were telling me is inaccurate. Another might be that you don't know what you're talking about, that this is actually your first hearing of this particular type, or you just graduated from residency four days ago, and so you really have like no idea . . . I mean, you really do, but I'm just saying that would be the attempt to show that you don't know what you were talking about. That you've forgotten the truth is going to be a different line than saying that you're not knowledgeable, but they're both going to be equally effective. Another is that you were influenced. This is particularly effective with cases where you were privately retained as an expert, because you can show bias. You can ask questions alleging that the witness who's testifying is testifying in exchange for money, and they are. Granted, they're testifying for that money, not for the opinion, but for the testimony and for the review of the case, but when juries hear how much you were making or what you were being paid, that tends to be destructive to a witness's credibility, or that the witness is lying. All of these are different ways of engaging in destructive cross-examination. Impeachment is one of the techniques of destroying credibility. There's four different categories, and there's a lot more than this, but you can break them down into four different categories. One of them is going to be inconsistency. So the witness gave direct testimony. Now I come up, I do a cross-examination, and I ask a question saying, isn't it true, doctor, that when you testified in the deposition, you said, and it's the exact opposite of what he's saying now, how does that make him look? Do you believe him now? No. Okay. Or you can bring up testimony from prior cases. You can bring up inconsistencies with actual evidence. For instance, if the doctor is testifying about what brought a patient to the hospital, it's in a civil commitment hearing, and you have the police records, and you have the ambulance records, and they contradict what that doctor is saying, those questions are going to show inconsistency with prior evidence, which is going to make the witness less believable. Another example is learned treaties. So if it says one thing in the book, and let's say we're talking about meds and you're looking at stalls, and you can cross-examine a witness by showing that what they're saying contradicts that, although they might have a good reason, it's going to at least at first appearances make what they are saying less believable. We discussed bias, also interest and motive. Does the doctor have a motive for their testimony? Do they maybe make it look like they make more money if they keep a patient longer? Or some sort of motive. Another group is going to be prior bad acts or criminal convictions. So if a patient, if the testimony against a patient is being made, and you want to discredit it, and the doctor that is making that testimony has a prior criminal conviction, let's say for perjury, they're not going to be credible, right? Or if they have a previous instance where they were fired from a hospital because they were lying about something, or a previous episode where they were found to be lying or incorrect on the stand, any of those things would be destructive and reduce their credibility. Another is a bad reputation for truth. Perhaps every time that this person has testified in the past, the court is found against them. That's another thing that is going to destroy their credibility. In terms of areas to target for destruction, in other words, destructive cross-examination, things that you could have questions asked when they are attempting to make your testimony look bad, one is going to be qualifications. A common question that I've seen has been asking about whether you're board certified. Sometimes even whether you have failed a board examination. Bias, who paid your salary? Who retained you? Are you getting paid by the day? Are you getting paid by the hour? How many cases has this attorney hired you for if you're doing private work? Your methodology, your knowledge of the facts and patient, your diagnostic accuracy. Where did your diagnosis come from? If you made a diagnosis of borderline personality disorder and you testified as to borderline personality disorder, did you meet all of the criteria? If you're being cross-examined, do you know those criteria? Can you actually show that you are accurate? If you're not and you made that diagnosis, that then will permeate into your credibility in general and make you look less credible. This is a key area to make sure that you were following whatever diagnostic criteria you were claiming you were following and that you're doing it accurately. Another one is the application of the relevant legal criteria. When you testify, you're testifying about medical stuff, but when a judge or even a jury makes a decision, they're making it based on legal criteria. They have a statute. They have something that they are looking at to determine whether they are going to rule one way or the other. For instance, for civil commitment, we have the substantial disorder in Ohio, gross impairment, and then we have one of four specific criteria. When you get up to testify, make sure that however you are testifying that you know the legal criteria that the court is going to ask. When it comes time for cross-examination, those are going to be key questions. They're going to be poking to see whether you are saying that this person meets the pertinent legal criteria. In civil commitment, two areas that I've commonly seen targeted are going to be lack of knowledge or perception of events. For instance, a clinician who is attempting to civilly commit a patient, how much do they rely on family reports? What did they actually see themselves? That's going to be an important area that cross-examiners often like to target. Another that I've frequently seen has been not applying the legal criteria correctly. For instance, do you know in your jurisdiction if there's an eminence requirement for self-harm? That's going to be pertinent, right? Do you know what the language is in terms of violence? How far in the future can it be that you are predicting potential violence? The legal criteria is key. From that, cross-examiners like to often look at current stability and compliance in the hospital because they can then use that with regard to what those criteria are to show that the eminence isn't there or whatever else is in the legal criteria. Another one is least restrictive treatment setting. How many of you have had patients scream at you? How many of you have almost always kept your cool when patients have screamed at you? It's pretty easy, right? You're clinical. They can be saying really mean things and it rolls off your shoulder because you expect it. As a doctor, you can't get defensive. You can't get argumentative because that wouldn't be the right thing to do and it would be outside of what we were trained for so many years. We have all of this training on how to not let a patient's insults or statements get us riled up. Okay, well that training right there that you have, that is why you were ready to thrive on cross-examination because next time that you were being cross-examined, instead of looking at the attorney as an attorney, I want you to look at them as that patient that's screaming at you. I want you to marshal those exact same skills that you use to keep from becoming defensive, to keep from becoming argumentative or to get upset to do the same thing with the attorney. Remember you will have a chance at rehabilitation on redirect. You remember those two things and you will not only survive but you will thrive on cross examination, especially with all of the stuff that he's going to tell you now. All right, well thanks so much Dr. Vandekar. So we're going to talk about how to counter some of these cross-examination techniques that we've heard about from Dr. Vandekar but first, for those of you that might have not seen this before, here's the QR code for the handout. It's all up there for your viewing pleasure. All right, well let's talk about how to counter cross-examination and the first question is why do we need to counter cross-examination? Well because cross-examination, as we've heard, spins and distorts your opinion. It takes things out of context and it really serves to erode what you're trying to do in your direct testimony. So in order to counter cross-examination, you must have knowledge of and a plan to deal with cross-examination. You have to have knowledge of what you're likely to be cross-examined on, the actual specific topics, but also have to have knowledge of the process and style of how cross-examination questions are asked and we're going to cover both of those here. So you have to have knowledge of cross-examination in general, which you've heard from Dr. Vandekar. Knowledge of cross-examination techniques and I would also advocate for if you know the facts of the case cold, that will serve you well when you're being cross-examined. To know dates, medication dosages, diagnoses, all the little details that you can fall back on when you're being cross-examined. You must be able to anticipate potential areas of cross-examination, both in your written report so you can address it in the report and kind of cut it off at the pass, and then be able to anticipate the cross-examination path as it unfolds in front of you. That comes with both knowledge and experience. So cross-examination can be a mental battle, not unlike a chess game, or to use a Star Trek analogy, even a 3D chess game here, because you have to know where the attorney is going three or four questions in advance because they certainly know where they're going. And it's also 3D in that sometimes a good cross-examiner will ask you, he'll have three or four different categories he's asking at the same time. He'll go from category one to three to four, back to one. So this is all organized in the attorney's mind, and you have to be able to kind of pay attention to that process. You have to pay careful attention to the cross-examination questions. Never answer a question that you don't fully understand what the question is. Listen very carefully for distortion techniques in those questions, because part of a cross-examination technique is to distort information, either your previous testimony or facts, and you have to be, you know, pay careful attention to that. Pay attention to what to concede. Concede the obvious weaknesses. Concede the information that doesn't support your opinion. You know, most cases, all of the evidence is not on one side or the other. It's a weighing of evidence, and so likely there'll be some evidence that doesn't support your opinion, and you have to be willing to concede that. If you dig your heels in and fight on everything, it simply makes you look stubborn and will decrease your credibility with the finder of fact. Likewise, you have to keep in mind what are the critical points, points that you're not going to concede on but stick to your guns on. Let's look at the broad topic areas that the cross-examiners will use to impeach your testimony, and we've heard about some of this from Dr. Vandekar, and how we can perhaps respond to it. Qualifications, your methodology, your reasoning and conclusions, and any bias or prejudice. First with qualifications. And we're going to go through each of these topics here with some sample questions here. So licensure, board certification, whether you've had a forensic fellowship, whether you've trained in the specific issue at hand in your case, whether you have experience in that issue, any academic work on that topic, and any honors or awards. So here are some questions, and the impressions that these questions are trying to leave is that maybe there's some problems with your medical licensure. When were you licensed? Are there any restrictions on your license? You've been disciplined by a medical board. Are you licensed to practice in this jurisdiction? Because sometimes experts travel from state to state, and is testifying the practice of medicine that will therefore require licensure. So some of these things are just a no-brainer. If you have prior discipline, just concede that, or maybe even talk about it on direct. So board certification will get raised. The public is well aware of board certification and what it means, and so here's a list of questions here and potential answers that might remedy that. If you're not board certified, it's best simply to concede that and to acknowledge that. There's no way around it. Recertification comes up, or if you failed a previous either board exam or recertification, not a fatal flaw, but just be aware that it will come up and deal with it. When were you most recently certified? One of my mentors, I like to make fun of him, and I think you'll see this later in the video, he had a lifetime certification in 1971. So that's great, but he's always asked then, well, hasn't it been 50-plus years since you took the exam for board certification, and he has to answer yes. And you'll see in the video, he does a very good job of dealing with that. What about training? So, you know, if you have a fellowship in forensics, great. If you don't, be prepared to maybe explain why or how you've got training either on the forensics side of things or the specific area that your case happens to be on. This is just more in that same series of questions here. Now, this comes up a lot, and people have problems with that. Let's say it's a suicide malpractice case, and you're testifying as an expert witness, and you're asked, are you an expert in suicide risk assessment? How do you think you would answer that? Any ideas? Yes. Yes? Yes. That's a good answer. Okay? Some people think that they have to be the world's utmost expert on suicide risk assessment in order to answer that question in the affirmative, and that's not accurate. So rules of evidence say someone is qualified as an expert by one of five things, knowledge, skill, experience, training, or education. So if you've had training in those areas, of course, which we all have had, we're an expert. We have knowledge. We have experience. We have knowledge of suicide. We're an expert. We have knowledge above that of the average layperson, therefore, we're an expert. Now, how much weight the finder of fact places on our expertise is a different matter, and that's based on your qualifications individually. You might be asked about, have you been published on the topic at hand? Have you done research or academic presentations? And if so, great, and talk about that, but if not, it's just best to concede and to move on. You don't have to have published or researched in certain areas in order to evaluate them with some expertise. You'll be asked about honors or awards, and don't use your honors and awards from high school or that you were prom king, obviously, but it's okay to cite one or two honors, but it's important to note that jurors like humble experts, so don't get up on the witness stand and list a long series of honors. All right, so we covered qualification challenges. How about methodology? This is more fruitful, I think, for the cross-examiner. So to look at a number of areas, and we'll cover these here individually, either your sources of data were insufficient, there was no collateral data, in a forensic evaluation, it's a cardinal sin to accept the subject at face value, what their self-report is, as accurate without corroboration, so you might get asked about that, if you're unaware of the legal standard that the case involves, if you did not use or used the wrong psychological test measure, ignored conflicting data, failed to consider critical evidence, or failed to investigate a plausible alternative theory. So we'll talk about some questions with this. So this question leaves the impression that you did not spend sufficient time on the evaluation, and that you need to know everything about the subject in order to form an opinion on this one specific legal issue. So doctor, how long did you spend interviewing my client? Four hours. Do you think that was sufficient time to know everything about my client? How much do you answer that question? Right. And you don't need to know everything about the client in order to form an opinion. So you can say, yeah, absolutely, I had sufficient time to conduct a thorough evaluation and form an opinion, or since the psychiatrist actually determined the length of the interview, that the fact that they went four hours and then concluded that they had enough information that it was up to them to end the interview whenever they had enough data. This leaves the impression that you did not review enough material or a relevant document. And sometimes this gets asked in a quick hitter type of questions. Doctor, did you review item A, item B, or in this list, X, Y, Z, Q, JJ, et cetera? Did you look at every relevant piece of information before you wrote your opinion? So the remedy of this is to anticipate this in advance and make sure that you looked at all the relevant information, especially the same documents that the opposing expert did. And for material that's not relevant, just answer no, I didn't look at that, or I didn't think it was relevant, or I wasn't even aware that it existed, perhaps. This leaves the impression that your opinion is less credible than the subject's treating physicians because you had less time and less contact. Doctor, on how many occasions did you interview my client? Once for four hours. Who do you think understands my client better, you or my client's treating doctor, who's seen them on 30 occasions over the course of 10 years? Any ideas how you might respond to that? Fair answer for our live streaming audience here that she would make note that the contacts were brief perhaps seven minutes long I think you could also say well listen. I was doing an independent evaluation Did not have a conflict of interest as the treating physician Also, so because of that you're able to be more objective and also likely as the forensic evaluator You probably had much more collateral information than the treater often has so you can answer that This Also is a quick hitter list of questions. Did you do this? Did you do that? Did you get a CBC a white count? Did you get? you know brain imaging and You know because it sounds good to the cross-examiner when you answer no no no no no and that might impair your credibility So hopefully you can bring some reality to the situation You can either wait for the retaining attorney to object Or you can say you know there was not a need for that so the answer is no I Think we talked about this, so I'm going to skip this face value This also can be a quick hitter about did you look at all these different sources of information leaving the impression that your evaluation was Incomplete or that there was conflicting data that you failed to resolve So the way to counter that obviously is to review all the relevant documents And then attempt to reconcile or explain on direct the conflicting data and the rationale for your opinion You might be asked about the legal standard given the impression that you didn't either know the legal standard Or Misapplied it so obviously you must know the standard under which you were laboring and apply it to the case in which you're working Another example of quick hitters, let's say this is a competence to stay on trial evaluation. Did you administer a long list of all these Competency assessments given the impression that your assessment was incomplete So you can simply answer you know no while many of these test measures are available to assist evaluating competence to stand trial in this case The clinical and functional assessment was sufficiently clear that there was no need for a test measure I'm going to skip this just in the interest of time how about bias you can be asked about Confirmation bias leaving the impression that you cherry-picked data To conform to the opinion you were hoping to make and ignoring contrary data So one way to deal with this is to it to acknowledge the potential for bias No one is free of bias and to acknowledge that You were aware of it And that you tried to deal with your bias by saying that she looks and I look at all the data and trying to assess Assess it objectively and it's still my opinion that X Y or Z Likewise in a malpractice case you might get asked about Hindsight bias that you know the outcome there was a bad event that now is a subject of the malpractice claim And so you have to be able to answer how you accounted for how hindsight bias that despite knowing the outcome you're able to place yourself in the shoes of The of the defendant doctor at the time of the incident and Subtract from the equation the bad outcome that you know happened later on Conflicting data here's an example of a series of questions to mr. A flee from the scene of the offense yes This fleeing the scene typically indicate knowledge of wrongfulness of the offense yes Yet you opined mr. A is legally insane did mr. A hide the weapon yes It's hiding the weapon typically indicate knowledge of wrongfulness yes so doctor whoops so Yeah, one way to deal with that is simply to you know explain away the conflicting data because again not all the evidence points towards one Opinion or another opinion and the sanity case not everything points to sane versus insane You have to be deal be able to deal with the data that Weighs the other direction Missing data you fail to consider critical data doctor after the offense my client was taken to the emergency department Did you have those records those would be critical records? Well the remedy for that is simply don't do that be aware that that's Critical data and make sure and obtain that Failing to investigate a plausible alternative theory So You can read this here for yourself but the idea here is that you do want to investigate alternative theories and deal with them and be aware of what those alternative theories are so then when you ask about it on cross-examination you can give a well reason to answer Did you rely on psychological test measures yes, and Then you might be asked about the psychometric properties, so this is called Daubert criteria for reliability from a case called Daubert v. Merrill dial pharmaceuticals from the early 90s So if you're going to say that you relied on a certain test measure even an IQ measure Then you must be able to answer questions about it So the court can assess its reliability and determine whether it's admissible or not And then opinion challenges Facts don't support the opinion there's leaps in logic speculation faulty reasoning Applying an incorrect legal standard or level of certainty opinion Let's look at these here the facts don't support the opinion Leaving the impression that your opinion is faulty due to flawed reasoning So the counter to this is simply don't do this. This is very difficult to recover from it's a blow to your credibility so many so-called experts make this mistake that they Write out opinions that are not supported by the facts Likewise leaps in logic Doctor does the insanity standard require that the defendant not know the wrongfulness of his actions at the time of the offense yes Did the defendant know the wrongfulness of his actions at the time of the offense? Yes, but I still think he is legally insane Why is that well because he had an inability to resist well that Isn't the right standard or at least in most jurisdictions some jurisdictions it is but So that's hard to recover from Speculation It's my opinion that the defendant probably was legally insane You're guessing and that will be excluded from the record If you can't say it with a reasonable medical certainty, then you shouldn't say it at all All right, I'm gonna skip a few of these here in the interest of time This is a good one doctor. How sure are you of your opinion? Are you 100% certain? Leaving the impression that an opinion requires 100% certainty or at least a high level of certainty Well, the answer here is that reasonable medical certainty equates with the preponderance of the evidence Basically as you weigh the information 51% or greater of the evidence Flows and supports your opinion. It's not doesn't require 90 or 100% but many novices get caught up in this area here On The flip side of that if you testify something is probably could be maybe possibly is that will also be Be excluded because it's simply speculation Object objectivity challenges bias either one way for the defense or plaintiff referral patterns financial interest So Biased these questions leave the impression that you're biased or beholding to the referral source If you met attorney Smith prior to this matter, they were attaining the past by attorney Smith how many times? You have to answer those questions honestly here Do you know attorney Smith Personally do you expect any future referrals from attorney Smith? How many times have you have you testified for this attorney or his law firm? Have you? Evaluated cases for this attorney and couldn't be helpful Or do you have a track record of every time attorney Smith calls you you happen to form an opinion that favors attorney Smith's theory of a case So answer truthfully, but the response to this should be just don't do this. Don't You know have a have a broad referral base and don't have a personal relationship with your referrals What percentage of the time do you testify for the defense or a plaintiff leaving the impression that you're biased one way or the other So the remedy for this is develop a broad-based practice do both plaintiff and defense work And You covered a bit of this But how much are you being paid for your work? What's your hourly rate leaving the impression that you're a hired gun that your opinions are for sale? And you know the attorney is entitled to an honest answer for this how much you've charged in this case what your rate is But You're not being paid for the content of your opinion. You're being paid for your time on the case your professional time on the case How much are you being paid for your testimony Well, the answer is I'm not being paid for my testimony and being paid for my time You might even ask broader questions about your annual income and Generally those are not admissible and so that you ask about this in a deposition it's best to wait for an objection from the retaining attorney and Have that question certified and have the judge Make a ruling on it later Philosophical bias are you opposed to the death penalty leaving the impression that you're an activist using this case to further your personal biases And the obvious answer is don't don't do this All right, well, let's move on now and we've talked about The content area what this clicker doesn't want to click there we go let us look at the style of questions that are asked and we've got 15 or so different styles of questions here that may cause problems on cross-examination Yes, or no questions So in cross-examination questions that lead are permitted in fact as we heard from dr. Vandekar there were major tool in cross-examination The attorney wants to control the expert Will not ask questions. He doesn't know the answer to and so the question here is How much control will the attorney exert on your answers? Versus how much free reign do you have? If you argue if you don't want to answer yes or no, or you want to explain? Then if the attorney then clamps down on you and you continue to argue and you'll appear less credible But if you simply accept and go along with these yes, no questions, then there's the potential that your opinion can be distorted so it really is a Battle here Between the expert in the cross-examiner and as you're going through this you have to do basically a risk-benefit analysis You have to decide is it worth the risk of pushing back and arguing against some of those? Yes, no questions or simply waiting for redirect and a chance to explain and Every case is you know individual every attorney is different. So you have to kind of make that judgment in the moment So here's some examples of these yes knows series of quick cutters designed to show your evaluation was incomplete Doctor yes or no, you failed to order a CBC Head CT and RPR, etc. And this sounds good to the cross-examiner it again to get you to say no no, no, no, no and a fast series of responses Now one of my mentors was a late Doug Mossman from Cincinnati He had a good response to this is that he explained first and then gave a yes or no In order to kind of slip that in without actually appearing argumentative. So I think that's a good response from dr. Mossman compound questions Doctor did you interview the subject and complete the evaluation? I Kind of misleads because it skips all the other steps in the evaluation This actually was a real question here Has anyone suggested to you or to the best of your knowledge to them that they might have been the victim of sexual abuse? There's a couple of different questions in there. So And if you answer yes or no, you don't know which one you're answering yes or no to so insist on simple questions that are not compound Mistaken premise Listen carefully this question is it's coming out doctor. We all agreed that my client's diagnosis. The patient was reasonable. So there's a statement Then there's a question and if you answer that question, it's assumed that you've agreed with that statement And so listen to those Premises there's the statements and only answer the question if you agree with the statement that preceded the question Otherwise just say I can't answer that question because I disagree with a statement that you made Negative question these are difficult to figure out as well. So you have to tread carefully doctor There is no evidence indicating that the defendant is able to assist in his defense, correct? Doctor you do not have expertise evaluating pedophilia. Do you if you answer? Yes or no, you don't really know what you're Saying are you saying? Yes, you do or don't it's hard to know and This gets even worse, isn't it true that there's no evidence that my client did not hide the weapon Is it not your opinion that there are and these are real questions? Is it not your opinion that there are no studies indicating that ADHD is has depression? So again ask on simple or insist on simple direct questions Do you agree? Okay, this is a trap you can see coming from a mile away They'll ask you a series of simple questions where the answer is obvious and you'll kind of get lulled into saying yes Yes, yes. Yes, and then they'll put in the zinger without you really being aware of it So doctor, do you agree that the Sun rises every morning? Yes, the Sun sets every evening. Yes, the moon comes up every night. Yes Sunset is followed by the moon rise. Yes sunset causes the moon to rise. Yes. No, it's not true. So Be wary of that Specific numbers be wary of specific numbers because unless they're based on sound science They can be easily impeached. You know psychiatry is not an exact science So let's say you testify something is 48% Well, why not 47% or 49% there's no good answer. So it's better to use broad ranges mild moderate severe something like that I Am aware with a whole person impairment. There's actually a formula in the AMA guidelines And so you come up with you just use that number, but that's based on a formula not just some speculation Okay How about questions that misstate How about questions that misstate the facts let's say you're in a suicide malpractice case And you really have to know the numbers and the dates exactly So doctor, isn't it true that mr A specifically denied suicidal thinking on five separate occasions over the course of three days prior to his discharge So know the case cold know How many times the patient denied suicidal thinking over what course of time So if you know that the facts of the case cold that will serve you well The attorney misstates your earlier testimony, so you're testifying That the visit this is a medical board case That the physician due to his bipolar disorder needs treatment and monitoring to practice medicine Time passes you're asked a lot of questions You get more tired from the passage of time and all those questions And you're asked again, doctor, since you testified that my client is able to practice medicine so long as I take your medicine, well, that's not what you stated. So the cross-examiner is relying on your either fatigue or your inattention to kind of get you to concede something that runs contrary to your opinion. So pay attention to your earlier testimony and to the follow-up questions on that topic. Trying to impeach you with a prior inconsistent statement, i.e. setting the trap. So the cross-examiner locks the witness into a definite answer, proves that a prior statement was made, which is now materially different than what they're saying now. So here's a little video from A Time to Kill in which we see that illustrated. Just a few questions, your honor. Doctor, who do you work for? State of Mississippi. In your 11 years working for the state, how many times have you testified in trials where the insanity defense was used? This is my 46th trial. 46th trial. Well, of those 46 trials, how many times have you testified that the defendant was legally insane? Objection, your honor. The good doctor cannot be asked to recall all of his testimony at these previous trials. It's absurd. Overruled. Thank you, your honor. I can't remember. It seems to me, doctor, that the reason you can't remember is that in 11 years and 46 trials, you never have seen a defendant whom you have found insane. I can't recall at this time. Can you recall testifying at the trial of one Dan Baker? Objection, your honor. This has nothing to do with the proceedings here. Overruled. This better be good, Mr. Biggs. Thank you, your honor. I'll ask again. Can you recall testifying at the trial of one Dan Baker? It's a rather brutal double homicide where you found the defendant legally sane? Yes. A dissenting psychiatrist disagreed with you, doctor. Mr. Baker was found insane and institutionalized. Where is he currently, doctor? At Whitfield. And who is the chief psychiatrist at Whitfield? I am. You are. Dr. Rodeheaver is the chief psychiatrist at Whitfield. Now help me make this clear to the jury, doctor. In 1985, you testified that Dan Baker was legally sane. The jury disagreed with you, and Mr. Baker was found not guilty by reason of insanity. Since that time, he has been a patient in your hospital under your care as a paranoid schizophrenic. Is that correct, doctor? Yes. Do you normally admit patients, keep and treat them for 10 years if they are of sound mind and body? Of course not. Then it would be fair to say that you find insane people sane for the purposes of trial. Objection, your honor. This is argumentative. Withdraw the question, your honor. No further questions. So Dr. Rodeheaver doesn't look too happy there, impeached with his inconsistent statements and behavior. Do one or two more of these, and I'm going to get to some other video of a real trial. So hypotheticals, attorneys love hypotheticals. So step one is construct a hypothetical similar to the actual case, but using only the facts favorable to the cross-examiner's narrative. Get the witness to opine favorably on that, and then impeach them on their opinion in the actual case in light of their opinion on the hypothetical. So doctor, would it be reasonable to discharge a patient who had disavowed suicidal thinking for three days? General, yes. Would it be reasonable to discharge a patient who had not attempted suicide in the hospital? Yes. Reasonable to discharge a patient who was taking their medicine? Yes. Later, as time passed then, doctor, you indicated previously that it would be reasonable to discharge a patient who had disavowed suicidal thinking for three days, had not tried to harm himself in the hospital, and was taking their medication, but that occurred in this case. You opined that discharge was inappropriate, and of course, they're not using in the hypothetical all the other factors that would indicate discharge was not warranted, that it was inappropriate. So really be cautious about opining on these incomplete hypotheticals that are not similar to the fact patterns in the actual case. One more, then we'll go on to the video here, something called the wedge. So the wedge is a classic technique to neutralize expert testimony because it drives a wedge between the expert and the jury, and especially this works in imprecise sciences like psychiatry where reasonably people can differ. So you can have two differing experts, both reasonable, come to different conclusions. What will happen is the jury just disregards both experts, and they kind of then use their own reasoning to decide the case. Let me fast forward here, and this is all in the handout. You can read this later here, but I want to take you to a murder case here. Oh, actually, we should touch on this real fast here, about report writing. So as you're sitting in your calm office writing your opinion, it's important to then anticipate what might be the topics of cross-examination if you're called upon to testify because there's things you can do in your report to deal with that future cross-examination. So be thorough in your report, especially in your opinion. Go over all the relevant facts. Use the appropriate legal standard. Justify diagnoses with DSM-5 criteria. State your opinions clearly and provide your underlying logic, and make sure that your logic correctly states the facts of the case. Deal effectively with any conflicting evidence. Don't speculate, and again, to anticipate what you might be cross-examined on and deal with it in your report so you're not caught off guard whenever you're in the hot seat testifying. All right, let me just go over this case real briefly. This was a murder case. State v. Patrick Heltzel, our defendant on the left. He killed Milton Grumbling II, I think in around 2015 or 14. So charged with murder and robbery, here we go, yeah, the offense date was April 3rd of 2013, and seen by a number of mental health evaluators. This is a little too much detail here, but the issue came up for his sanity. And so Dr. Fabian gave one opinion on sanity. Our mentor, Dr. Resnick, opined that the defendant was sane, and I opined that he was insane. And so we had a bench trial, and we were able to videotape all of our testimony, and I've got some video here that will illustrate a few cross-examination techniques here. So this is Dr. Resnick, and he's not here today. You were board certified, did you say, I'm sorry, forgive me, in 1971, correct? Yes. Now, are there follow-up exams on that? Do you take some exams to remain certified? It's a little bit complicated. For those that passed their basic psychiatry exam, they're considered grandfathered, and they don't need to take recertification. However, on the forensic board certification, which I took in 1994, then there is a need every 10 years to recertify, and I have recertified every 10 years in that. Did you engage in a post-doctoral fellowship in forensic psychology? No, I did not, and I'm a psychiatrist, not a psychologist. I'm sorry, that's what I meant to say, psychiatry, forgive me. So let me try that question again a little more clearly. Did you engage in or participate in a post-doctoral fellowship in psychiatry? No, in my era, they were not available, but I've been running such a fellowship as director since 1979. So Dr. Resnick did a really good job there. He was able to explain himself out of that, and the attorney, I guess, to his discredit, did not control Dr. Resnick. He let him explain away. If he had really pinned him down and said, isn't it true, yes or no, you have not had a forensic fellowship, yes or no, he'd have to answer no. Isn't it true that you have not recertified in psychiatry in, how many, 45 years at that point? But the attorney didn't control him, and he was able to explain away. This cross-examination tries to use that wedge technique, leaving the impression that we don't know what the defendant was thinking at the time of the offense, at the time of the murder. Let's see how this plays out. And no matter how many doctors we call here, the only person that really knows what's going on or knew what was going on is Patrick Helsel, correct? That would know precisely what was going through his mind, yes. So let me ask you, is it possible that he might not know because he was so severely psychotic that he's not able to later give an accurate report of what was going on through his mind? Can that occur? That can occur, but in Mr. Helsel's case, he doesn't say, I just don't know what I was thinking, it doesn't make sense to me now, I've had people say that to me. He says explicitly what was going through his mind and what he was trying to accomplish and what he was thinking. Unfortunately, he gives contradictory accounts, but he doesn't say, I don't know what was going on in my mind. So very effective, don't you think? The attorney tried to say there's no way to know what happened, there's no way to know what this defendant was thinking, and I think Dr. Resnick really effectively dealt with that. Okay now, this question gets to, the defendant at one point talked about having a delusion that he was a godhead, that he was a godlike figure, and that was one of the motives for the killing. And at one point in his competency evaluation that Dr. Resnick did, Dr. Resnick put weight on that delusion, he believed that the defendant actually believed that, but then later on in his sanity report, Dr. Resnick did not accept that. He questioned whether the defendant actually had that psychotic belief, and so he's asked about that, and we'll see how he deals with this here. So if I understand your testimony, when you say that you're leaving the issue of credibility up to his honor, Judge Logan, it's fair to say that at one point, you put some stock in that belief that Patrick thought he was a godhead, correct? I cannot rule out that that is a genuine belief, that is one of the versions, yes. And certainly, it was one of the major premises for your suggestion or opinion to the court that he was not competent to stand trial and wasn't making rational decisions in relation to going to trial, correct? Yes, now that was a year or two after the crime. And what's changed, if I understand your testimony now, is because all of these other versions have popped up, and so now you're saying, well, it's up to the court to decide that. It's up to the court to decide whether his honor believes that the primary motive for the killing was his belief that God wanted him to do it versus other reasons that he's given. All right, now in fairness, I'm going to do a few of myself as well. So here I'm being cross-examined about my methodology and that I applied one kind of standard about wrongfulness based on some evidence but not on others. You'll see how it plays out here. You had some criticisms of Dr. Gaisley because some of the things he had listed, including invoking his Miranda rights, were done after the offense, correct? Yes. All right, but you list in yours under 5B, specifically number 7, that when speaking with officers, Mr. Hetzel did not deny committing the offense. So the criticisms that you directed Dr. Gaisley for finding Patrick knowing he was acting illegally, you put in your category for supporting your contention that he didn't know he was acting illegally, correct? Just with the exception that when he spoke with officers on April 5th and didn't deny the offense. That's about a day and a half out from the offense. When Mr. Hetzel asked for a lawyer, as Dr. Gaisley pointed out, at my timing, that was about six days after the offense. The idea being that the further you go out from the offense, the less powerful the evidence becomes. So, I think, so-so. I think I got out from that one okay. Let's see. This is about a list of factors, whether the defendant knew illegal wrongfulness and some errors in reasoning. Well, let's talk about specifically number 7. Those officers that arrested him, they never questioned him about the offense, correct? Correct. Okay. So, how could he deny something that he wasn't questioned about? You would agree he can't deny something unless he's questioned about it, correct? Yes. Right. So, we could sort of scratch 7 off of there because that really didn't happen. He didn't deny committing the offense, he was never asked about it by the officers in North Carolina. He didn't argue about it one way or the other, true. Okay. So, that's not a denial as if I say, Dr. Nossinger, you have killed someone and you say, no, I didn't. Well, that's not what happened in this case. Patrick was never questioned by anyone until 6 days later when these officers arrived down there, correct? Yes. Okay. So, that's irrelevant. There was no denial. There was never an accusation or a questioning. That's true. Okay. So, we can scratch 7 off of the list there, I would think, correct? I would agree it's less powerful. So, I think I had 17 different reasons why the defendant did not know the wrongfulness of the actions, of his actions at the time of the offense. And so, the cross-examiner, he focused on one point, .7, and he got me to concede .7, never asked me about the other 16 points, just leaving the impression, well, if .7 is no good, the other 16 are also suspect. So, highly effective, and I think the lesson there is, you know, as you list your pieces of evidence, line them up, put your most powerful pieces first, your weakest ones at the end, and then think about taking off the weakest ones, because those are the ones that will be targeted for cross-examination. We'll do one more, and then we'll open it up to questions. Yeah, all right. Talk about hiding the body. Well, let's go to 5B, number one, that you state that Mr. Heltzel did not hide the body. Do you have any idea, either from FBI statistics or other crime statistics, how many defendants actually do hide the body? No. Okay. So, that doesn't prove one thing or the other, does it? Sure does. Well, now you had criticisms of Dr. Gaisley and Dr. Resnick's report, because you said, you make these great leaps in the meaning of acts. You say, well, he didn't hide the body, that must have known that he didn't know it was illegal. But there are thousands of homicides committed every year where the body is out on the street or in the apartment or behind a dumpster where the shooting happened or in the bar, correct? I don't know the actual FBI statistics, but I instead analyzed Mr. Heltzel's behavior as looking at his individual subjective behavior, not comparing him to statistics across the population. Okay. But the fact that, to take it in the contrary, if he had thought he had done something wrong, he would try and hide the body, but he didn't do that. But you agree there are many, many people that commit crimes and do not hide the body, and then they know they've done something wrong. I don't know. I don't have access to those numbers. All right. All right. So we can go on and on with this, but you can see I tried. But in the end, actually, he was found insane. It was a bench trial. So we had some success. So I want to put up the QR code here for our live streaming audience. There was a request for that again. And so any questions? If you have a question, feel free to use the microphone. Can I do one from here? Sure. But let me ask. She had her hand up first, though. First of all, thank you both so much for a really instructive session. I've been to all, probably all the forensic presentations over the years and they're interesting and fascinating and it's almost better than Law and Order, but this really, you know, this broke it down and certainly I appreciate it. My question has to do with children and adolescents, I'm a child psychiatrist, and there have been occasions when I've testified in mental hygiene court and I have tried to keep a calm demeanor, all the things that you have suggested. But sometimes when the well-being of a youngster, a child or a teenager, is on the line, I have to admit I do find it a bit difficult. And I'm wondering if you have any thoughts about that. Are you saying it's hard to be objective in your testimony? Not hard to be objective, but hard to not be reactive, emotional, and those kinds, which leads to discrediting us, as you pointed out. Right. So you're saying that you're thinking about the outcome, concerned about the well-being. Absolutely. And that makes you reactive. Like, yeah, I would just try and keep in your mind that if it appears that you've got a personal interest in the outcome of this case, it's going to erode your credibility. And simply think about your opinion. I know one thing that helps me is think about, you know, I'm only here to advocate for my opinion, where the chips fall, the chips fall. I don't care, because it's not my job to have a personal interest or to have an interest in the outcome of this case. Whether the defendant is found guilty or insane or competent or incompetent or malpracticed, I don't care. And that helps me kind of not get emotionally involved. So that's my thoughts. What do you think? I mean, I would echo that in terms of your ability to present calmly is what's going to make you be able to do your job. And I would use whatever tools you use to avoid getting upset when bad things happen on the inpatient unit or outpatient unit or wherever it is that you're dealing with patients. And I would use those same skills. And just remember, again, that your ability to help this child and to convey your opinion to the court is going to depend on being believable, which requires that you not act overly emotionally invested. Thank you both very much. And just as an example, I'm doing a death penalty sentencing on May 30th, a guy killed five people. And he's up either for capital punishment or life in prison. And you know, huge outcome, you know, huge impact on this individual. But I can't think about that. I simply have to look at were there mitigating factors present or not and kind of look at the opposing expert's methodology and not have an interest in the outcome. So sir. Thank you both for a very helpful lecture. The imagery in taking away one pearl, the imagery of viewing cross-examining attorneys as a patient who needs to be restrained and sent to the quiet room that really helps to provide a context for the circus. So I really appreciate that. My question is, I do neurology and psychiatry, I get asked to see complex neuropsychiatric case for forensic work and the but for standard many times comes and they're asking for but for this car accident, would the claimant or the defendant have developed the conversion disorder seizures a year later? Well that depends is my answer. And so I'll say the preexisting predisposing factors that occurred and then the PTSD, the comorbidities and then the minor injury that occurred or the minor accident, low impact accident are all part of the causal chain that ultimately resulted in the development of the conversion disorder a year later. I want to say, yeah, doctor, but for the car accident. And so do you have a different or a better way to perhaps engage that complexity of neuropsychiatric causal chain of events? Do you have a response as a, as a lawyer, expert on causation? Well, I mean, my response would be that you could do a four hour lecture on causation alone. I mean, that's something that you spend an enormous amount of time in law school going through and it's going to really depend on how it's defined in your jurisdiction. So the only advice that I would have is to become very knowledgeable about it, to find out what the seminal case is or what the statute is, and then to go into Lexis or Westlaw and to do a reverse case law search so that you can read cases where the courts have actually looked at the expert's opinions on that specific standard. And that could then help you to use the language that they use when they ultimately make their decision and to understand how they're conceptualizing it. And I, I guess just to add to that, the other thought I had was, uh, any analysis of would they have developed a condition anyway, even if the accident hadn't happened due to some other minor insult in their life? And if you're able to opine on that, perhaps you aren't, I don't know. They do ask that also. Thank you. Hi. Hi. After going to Apple conferences for 14 years, this is an outstanding presentation, and I feel like it should be just every year. So thank you for that. Thank you. Thanks so much. Um, yeah, I wish this was a more academic question, but it's more stylistic. If someone asks me if I think the death penalty should or shouldn't be legal, what is my answer for both? Right. If I think it should and if I think it shouldn't, and if they press me on it, I really want to hear. Outstanding job. Thank you. Well, thanks. Uh, yes. And I am anticipating that question for May 30th. And my response is going to be, so I've actually, my opinion is that the mitigating factors proffered by the defense experts, uh, were not present, that they were flawed in their methodology and their qualifications, and that there are a couple minor mitigating factors, but that the 15 or so that the defense expert raised, such as that, uh, the defendant's medication made him homicidal and things like that, uh, were not really in play. Um, so, but my response will be, if I'm asked about that, is that, uh, uh, I think that the death penalty, that I'm actually against it because it's impractical. So that's kind of a, of a punt. I'm not taking a personal position, but just saying, you know, people have all these, uh, they have automatic state and federal appeals to drag on for 15 years, and it's just much more practical to give people life sentences. Still services, it still serves the purposes of, you know, their, uh, they, they can't re-offend. Um, and so that's, that's my answer, and I hope that will fly. I'll, I'll call you on June 1st and tell you how it went, I guess. As a follow-up, if you're someone who had a different core wedge belief on the death penalty, how would you advise answering that one? Well, I think . . . Thank you. Sure. I'd be very careful about getting involved in these cases if you do have strong personal feelings on it. Uh, I happen to not have strong feelings on it, other than the practical things I described, so . . . Sir. Yeah. Thanks again for the presentation. Really informative. Um, I've been approached a number of times by lawyers who want expert testimonial, child and adolescent psychiatrists, and my only training is a month in med school with Dr. Zanana, and, uh, a little bit, uh, in residency. So I'm, I'm nervous about, you know, taking one of these cases on. I'm wondering to what degree can you ask, for example, this causation question that came up, to what degree can you actually utilize the attorney that, uh, retains you for those kinds of questions as you prepare, um, or what else would you suggest as you prepare as a novice doing a first case? Thank you. Um, so, I mean, in terms of asking the attorney, you can ask them for any pertinent case law. Um, so if you want to know what the standard is in your jurisdiction for causation, you can ask the attorney. They'll tell you the standard, whatever the standards are that you're going based on. But I, I think a bigger question, as I heard phrased within your question, concern about doing a child and adolescent case, you're, you're saying that you don't have experience doing that, um, I think you would want to ask your attorney if the expert on the other side does, so that you know what it is that you're, you're going up against. Yeah. Sorry, just to clarify, I'm a child and adolescent psychiatrist, so that's, that's an expert area, but I just, I've never testified in court. Got it. Got it. Okay. And you've trained forensically? I, I don't have, uh, specific training other than a month in med school and a little bit in residency, um, yeah. Yeah. And yeah, I, I think it's fine to be cautious, but, I mean, people do forensic work all the time without having a fellowship, so, uh, you know, there is, you know, uh, there are, are resources available, uh, maybe not in the moment for this case, but, you know, you can come to the Apple meeting, you can, you know, read any number of texts on that, uh, but yeah, especially your first case, I have some, you know, empathy for you. Yeah. Well, I see it's 519, so we're past our time, so thanks very much for your attention. Thank you.

forensic psychiatry

cross-examination

Dr. Steve Nofsinger

Dr. Ashley Vandercar

attorney tactics

forensic reports

credibility

witness control

preparation

testimony techniques

report writing

objectivity

clinical detachment