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Questioning Expert Testimony Using The Kumho Decision

Posted in Miscellaneous Information
May 16, 2012, 11:05:00 AM
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American Psychological Association information regarding Kumho, courtesy of Bill Wood
This information was used to overcome the evaluation of one of the State's leading psychologists. He *was* also a personal friend of the judge BEFORE getting my rebuttal and information.

Following are several of the arguments and supports that I used to overcome this bad evaluation. I have only included the ones that are "generic" and could possibly be used in any formal written "Objection" but the specific items I objected to would not apply. You would have to craft your own common sense arguments as to why the evaluation, or expert testimony is invalid.

In North Carolina, our Rules of Evidence mirror the Federal Rules. As a result, I mention things such as Rule 701, and 705. In your state, if they do not mirror those federal rules, your state will have an almost identical counterpart but it may be under a different statutory section than ours.

Please bear in mind, the arguments listed below are specific to my case, but I have included the ones that can easily be adapted to any case. These came from a brief. The interesting thing about the Kumho case is that it is one of the FEW that has a clearly defined section on abuse of discretion placing a substantial burden on the trial judge to EXCLUDE questionable expert testimony. That is VERY odd for the Supreme Court to so clearly define abuse of discretion. That is not often done...

Bill Wood


Courts have further recognized evidence that does not qualify under an appropriate (Daubertlike) standard must be excluded because, "[t]he prejudicial effect of an aura of scientific respectability outweigh[s] the slight probative value of the evidence." United States v. Solomon, 753 F.2d 1522, 1526 (9th Cir. 1985).

In custody dispute, first source of information about parents' mental health should be independent experts appointed by courts or hired by parties for purpose of case, rather than professionals who have established relationships with parties, and assistance provided by independent experts should be sufficient in most cases, so that court should consider piercing psychologist-patient privilege to compel disclosure of prior treatment records only when court perceives, after consideration of all of evidence, that information gained from independent evaluations is inadequate. N.J.S.A. 9:2--4, subd. c, 45:14B--28; N.J.S.A. 2A:84A, App. A, Rules of Evid, N.J.R.E. 505;R. 5:3--3(a). Kinsella v. Kinsella, 150 N.J. 276, 696 A.2d 556 (1997).

II. ARGUMENTS

Introduction
That Psychologists engaged in Custody proceedings with the guiding star of "the child's best interests" should be held to a higher, and not a lower standard of reliability, validity, and accuracy than those of product liability cases. Therefore, proffered under the guise of a Forensic evaluation, the custody evaluation of Wood v. Wood should meet the higher, and not lower, scientific test of Daubert rather than expert "hypothesis", "conjecture", "opinion", etc. At the very least, according to the recent Supreme Court decision in Kumho Tire, Inc. v. Carmichael, 119 S.Ct.1167 (1999), "Daubertlike" standards, tests, methods, or other measures of validity and reliability also apply to "technical or other specialized knowledge" as determined by this case.

Since a child custody evaluation is a document that is in and of itself a form of "testimony", each and every statement that makes up a Forensic Child Custody Evaluation should be at least firmly and solidly supported by substantial verification and foundation according to Rule 705 for expert testimony.

Further, "expert" opinion testimony not based on first hand observation, review, and understanding is little more than "Psychic" or "mind reading" pursuits under credentialed guises. A Ph.D. and 20, 30, or more years of experience simply gives an aura of credence and credibility to long held biases or prejudices in allowing such experts to engage in practices tantamount to opinions, judgements, and other inferences not based on first hand knowledge but rather on "mind reading" or second and even third hand "interpretive".

Psychological objects such as personality tests like the MMPI-2, MCMI, and others are little more than guides that lend to the appearance of being scientific. These tests rely solely on self reports, and no externally derived data and can, by external factors, or subject biases, give wildly different results for the same person on the same day. It has frequently been observed in psychological research that such tests have little long term reliability and are often much different for the same subject some 2 - 4 weeks later. Manual interpretation of such "tests", which in fact are no test at all but subjective self reports, are prone to interjection of the evaluators bias and agenda when hand scored and not computer generated. This subjective bias can be seen in Bigger v. Bigger where H. D. Kirkpatrick has used scores that were similar to the DEFENDANT in Wood v. Wood and did not elevate them in Bigger, but chose to manually adjust, or elevate to a "clinical" level, the scores of the DEFENDANT.

The DSM-IV, used by Psychologists to assign "labels" giving the appearance of some valid malady to those they come in professional contact with contains a disclaimer within its cover stating that it is a Diagnostic and Statistical tool for gathering data, and communicating with other professionals. In other words, these "labels" do not pass scientific muster that others such as MD's making diagnosis are subject to. These are interpretive and subjective labels fundamentally untested and the DSM manual is simply a "trade nomenclature" guide for further research and study.

From another section:
Omission of crucial information from the Custody Evaluation regarding parent child relationships and interactions that were provided by numerous collateral contacts for the DEFENDANT are prejudicial and unwarranted. These collateral contacts are conspicuous by their absence of negative and positive findings. Discovery of relationship oriented findings make these documents central to conclusively establishing or rebutting information provided for evaluation. To include only negative assertions and exclude positive tend to support the psychological "world-view" of "victimology". This purports that everyone is a victim and therefore is in need of highly paid counseling services. This "victim creation" ideology is clearly and conclusively outlined in the book "Manufacturing Victims, what the psychology profession is doing to people" by Dr. Tana Dineen which her peers have left off criticizing since it has been updated and now includes over 1,000 source references of research and legal cites. There are numerous parallels to the book's well-founded criticisms of the psychological profession and the means employed by H. D. Kirkpatrick in this evaluation. Tape recorded interview conversations with the DEFENDANT, WILLIAM WOOD, have been misrepresented and facts contained therein, as represented in the evaluation are not correct. Recorded interviews for both the DEFENDANT, and the Plaintiff are crucial for comparison to the content of the evaluation. If a competent, complete, and accurate reflection of all data accumulated during the evaluation is reflected in the evaluation document, with no omissions, errors, misrepresentations or other such representations, discovery would not be privileged, but simply a confirmation of previously presented facts. Proper, accurate, and thorough inclusion of data uncovered in the evaluation process would have already penetrated any claim of privilege.

A claim of decisions to omit or otherwise exclude information from the evaluation document are indicative of a bias and agenda and are not predicated on any accepted Forensic practice for determining truthfulness and accuracy absent careful and meticulous fact finding.

4. Allowing Penni Wallas, MCSW, a clinical social worker, the lead role in performing the core and fundamental role of evaluating the parents and the child has skewed any possibility of a truly Forensic evaluation. Clinical Social Workers, under certain circumstances (such as those mentioned in argument 5) are the most suspect to conduct such examinations because of the differences in expectations, roles, data gathering methods, questioning techniques, etc. If a clinical social worker is in fact competent and qualified to perform the central role in such evaluations by performing the key interviews of the parents, and the parent - child interactions, then there is no need for the Forensic psychologist as custody evaluator since all of the crucial Forensic activities in determining custody have been relegated to a clinical social worker. Further, when considering the parallels to the methods employed by clinical social workers listed in argument 5, there are disturbing similarities to those child abuse investigations and this child custody investigation.

5. Absent higher standards in the child's best interest and for the mental health, safety, and welfare of the child, abuses of "opinion" and subjective tests such as play therapy are easily and frequently misused. This is evident by the rash of spectacular cases in recent years regarding child sexual abuse allegations at day care centers across the country. As noted in the Amicus Brief for the Case of State of New Jersey v. Michaels Presented by Committee of Concerned Social Scientists, it is well researched that abuse and misuse of position, influence, questioning, and other "data gathering" methods are routinely misused by psychologists and social workers in child sexual abuse allegations. To use similar methods to attempt to determine issues in the child's best interests in a child custody proceeding simply changes the actors but not the stage or props. If these methods are not appropriate for sexual abuse findings, as noted by the quotes from the APA in the above mentioned brief, then they can not hold up to a high standard of the best interests of the child in child custody determinations. Also, the recent Supreme Court decision in Kumho Tire, Inc. v. Carmichael, 119 S.Ct.1167 (1999) expanded "Daubertlike" standards to apply to the technical and specialized knowledge areas which have a direct impact on the field of Forensic Psychology . This case conclusively raises the bar to include some form of reliable standard or method for the technical or "specialized" areas of testimony that would include Forensic psychology.


9. Generating unsupported, untested, and otherwise unverifiable "hypotheses" or "opinions" allows for unchecked bias, prejudice, and agenda into a process with no way to adequately refute such claims. Such "hypotheses" in a legal forum regarding a child's best interests are unwarranted, unfounded, and improper. Reporting "hypotheses" without having them clearly founded and substantiated is unfairly prejudicial, misleading, and open to abuse. It is also a waste of the courts time and resources to address the grounding, support, foundation, facts, or bases for each "hypothesis" according to Rule 705.


That "opinions" based on "specialized knowledge" lacking direct observation of a child, or Parent-child interactions, is little more than pure conjecture and speculation. Such "specialized knowledge" claims have been greatly "reigned in" in the state of California through statute because of wide spread abuses by psychological professionals who have gained widespread "expert" access to legal proceedings and to the courts for a fee.

Where the health, safety, and welfare of a child, in the child's best interests are paramount, a higher standard should be erected, even the NC legislature and the Federal government recognize the need to hold expert testimony based on "opinion" or "hypothesis" to a higher standard in erecting Rule 705 dealing with expert testimony. This standard should be raised still higher, and not lower, when dealing with the lives of children and their families. This standard, coupled with the percentage of the marriages that end in divorce (~50%) has considerable ramifications for the fabric of the social structure. Decisions and interjection by psychologists into the domain of the legal family dissolution, must be bound by clear and compelling logical reasoning, coupled with reproducible and verifiable standards. Without this high standard, psychological involvement poses the risks and dangers of becoming little more than an outlet for personal prejudice, bias, agendas, and possibly human experimentation.

Psychologists, tasked with the care of the psyche, or mind, be held to at least the same standard as a physician or surgeon treating the body where interests of children are involved. This standard is a high standard for the reasons of health, safety, and welfare of the general public.


SUMMARY

Preface - Frye established the original standard of "wide acceptance" of methods, Daubert gave the four "guiding principles" of scientific standards, and the recent Supreme Court decision in Kumho Tire, expanded "Daubertlike" methods, principles, or other reliability factors to the "technical or specialized knowledge" areas of expertise. These are in line with Federal Rules 702, and 703, which are the Federal counterparts of North Carolina's Rule, 702 and 703 governing the testimony of expert witnesses. Both the opinion held, and the language of Rule 705 indicate this high standard of reliability had always been the intent with regard to expert testimony.


This is from the endnotes and supporting authorities, these were FOOTNOTES to some of my comments above. And they were also footnotes to other sections. It is IMPORTANT to get the APA Ethical Rules AND the Specialty Guidelines for Forensic Psychologists if it is a Forensic Psych. If it is a Social Worker, they have a set of ethical guidelines as well. There is a National set if your state does not have them at the state level.

Bill

Daubert v Merrell Dow Pharmaceuticals 113 S.Ct. 2786 (1993); Held - Daubert noted several factors that courts should consider in determining if proffered "scientific" expert testimony would assist a trier of fact, including whether it:

  • can be tested;
  • has been subjected to peer review;
  • has a high known or potential rate of error; and
  • has attained general acceptance within the scientific community.


(b) The Rules - especially R.702 - place appropriate limits on the admissibility of purportedly scientific evidence by assigning to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. The reliability standard is established by R.702's requirement that an expert's testimony pertain to "scientific&knowledge," since the adjective "scientific" implies a grounding in science's methods and procedures, while the word "knowledge" connotes a body of known facts or of ideas inferred from such facts or accepted as true on good grounds. The Rule's requirement that the testimony "assist the trier of fact to understand the evidence or to determine a fact in issue" goes primarily to relevance by demanding a valid scientific connection to the pertinent inquiry as a precondition to admissibility.

(c) Faced with a proffer of expert scientific testimony under R.702, the trial judge, pursuant to R.104(a), must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. Throughout, the judge should also be mindful of other applicable Rules.


Opinion - BLACKMUN, J. [in pertinent part] "That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. fn.7 Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules, the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." The primary locus of this obligation is R.702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," an expert "may testify thereto." The subject of an expert's testimony must be "scientific . . . knowledge." fn.8 The adjective "scientific" implies a grounding in the methods and procedures of science. Similarly, the word "knowledge" [connotes more than subjective belief or unsupported speculation.] The term "applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds." Webster's Third New International Dictionary 1252 ('86). Of course, it would be unreasonable to conclude that the subject of scientific testimony must be "known" to a certainty; arguably, there are no certainties in science.

See, e.g., Brief for N. Bloembergen et al. as Amici Curiae fn.9 ("Indeed, scientists do not assert that they know what is immutably `true' - they are committed to searching for new, temporary theories to explain, as best they can, phenomena"); Brief for American Assn for the Advancement of Science et al. as Amici Curiae 7-8 ("Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement" (emphasis in original). But, in order to qualify as "scientific knowledge," an inference or assertion must be [derived by the scientific method.] Proposed testimony must be supported by [appropriate validation] - i.e., "good grounds," based on what is known. In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability. fn.9"

"Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry." Green, 645. See also C. Hempel, Philosophy of Natural Science 49 ('66) ("[T]he statements constituting a scientific explanation must be capable of empirical test"); K. Popper, Conjectures and Refutations 37 (5th ed. '89) ("[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability"). "

"Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, see, e.g., U.S. v. Smith, 869 F.2d 348 (CA7'89) (surveying studies of the error rate of spectrographic voice identification technique), and the existence and maintenance of standards controlling the technique's operation, see U.S. v. Williams, 583 F.2d 1194 (CA2'78) (noting professional org's standard governing spectrographic analysis)."

" R.403 permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . ." Judge Weinstein has explained: "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge, in weighing possible prejudice against probative force under R.403 of the present rules, exercises more control over experts than over lay witnesses." Weinstein at 632."

Black's Law Dictionary FRAUD (defined) An intentional perversion of truth... A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Any kind of artifice employed by one person to deceive another.

Frye v US, 293 F. 1013, 34 A.L.R. 145 (D.C.Cir. 1923) and Daubert v Merrell Dow Pharmaceuticals 113 S.Ct. 2786 (1993

Shepard v. Shepard, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968) and Pulliam v. Smith, 348 NC 616 (07/30/98 499PA96)

Legal and Mental Health Perspectives on Child Custody Law: A Deskbook for Judges, pg 368, 369 published 1998 by the West Group

See Section III(C), (D), (E); IV(A)(4); VI(A) Specialty Guidelines for Forensic Psychologists

[in pertinent part from the Introduction to the APA Ethical Principles of Psychologists and Code of Conduct] "In the process of making decisions regarding their professional behavior, psychologists must consider this Ethics Code, in addition to applicable laws and psychology board regulations. If the Ethics Code establishes a higher standard of conduct than is required by law, psychologists must meet the higher ethical standard&"

In Kumho Tire, Inc. v. Carmichael, 119 S.Ct.1167 (1999) it was clearly stated that " Granting the motion (and entering summary judgment for the defendants), the District Court acknowledged that it should act as a reliability "gatekeeper" under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 589, in which this Court held that Rule 702 imposes a special obligation upon a trial judge to ensure that scientific testimony is not only relevant, but reliable." and " Held: - 1. The Daubert factors may apply to the testimony of engineers and other experts who are not scientists. Pp. 7-13. (a) The Daubert "gatekeeping" obligation applies not only to "scientific" testimony, but to all expert testimony. Rule 702 does not distinguish between "scientific" knowledge and "technical" or "other specialized" knowledge, but makes clear that any such knowledge might become the subject of expert testimony. It is the Rule's word "knowledge," not the words (like "scientific") that modify that word, that establishes a standard of evidentiary reliability. 509 U. S., at 589-590. Daubert referred only to "scientific" knowledge because that was the nature of the expertise there at issue. Id., at 590, n. 8. Neither is the evidentiary rationale underlying Daubert's "gatekeeping" determination limited to "scientific" knowledge. Rules 702 and 703 grant all expert witnesses, not just "scientific" ones, testimonial latitude unavailable to other witnesses on the assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline. Id., at 592. Finally, it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a "gatekeeping" obligation depended upon a distinction between "scientific" knowledge and "technical" or "other specialized" knowledge, since there is no clear line dividing the one from the others and no convincing need to make such distinctions. Pp. 7-9."

Stephen J. Ceci and Maggie Bruck, Jeopardy in the Courtroom: A Scientific Analysis of Children's Testimony (American Psychological Association, Wash., D.C., 1995), p. 164.

The APA's position is that the dolls should not be used to evaluate whether abuse really occurred or whether the child just perceives that the abuse occurred. In either case, the use of the dolls would not be valid. In fact, there has only been sufficient evidence to show the potential misuse of the dolls and that there is reason for concern. Without sufficient evidence to the contrary, Ceci and Bruck urge that the dolls not be used for diagnostic purposes, at least not with very young children. Id.

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