Protecting the integrity of the legal system: The admissibility of testimony from mental health experts under Daubert/Kumho analyses.

Abstract

The authors discussed to what degree testimony from social science and mental health experts (psychologists, psychiatrists, social workers, therapists, others) meets admissibility requirements expressed by the U.S. Supreme Court in Daubert (1993), Joiner (General Electric Co. v. Joiner, 1997) and the recent Kumho (1999) decision. They reviewed data on Daubert/Kumho indicia of reliability using 2 exemplar areas of mental health testimony: psychodiagnostic assessment by means of the Rorschach and other "projective" assessment techniques and the diagnoses of posttraumatic stress disorder and multiple personality disorder (dissociative identity disorder). They concluded that some testimony offered by mental health professionals relating to these concepts should not survive scrutiny under the framework of Daubert, Joiner, and Kumho. Prior to the ruling of the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), testimony from mental health and social science experts was largely unregulated by the legal system. The Frye (Frye v. United States, 1923) standard had been in place for decades (Gianelli, 1980), requiring that to be admissible, the scientific bases of testimony must be "generally accepted" in the "field" to which they belong. This is a very lenient standard; experts can always be found who will swear that a theory is "generally accepted." Under Frye, the expert is not required to substantiate the scientific soundness of the theory by reference to proper research documenting other hallmarks of a reliable theory, such as the theory's survival of Popperian risky tests, survival of peer review, or calculable error rates. Moreover, "general acceptance" itself is usually established by the expert's say-so (subject to the finder of fact's judgment about the expert's credibility); citation of survey studies that document such acceptance are usually not required. Hence, testimony by mental health professionals regarding all sorts of controversial theories and methods has very often been admitted under Frye. The 1993 Daubert ruling of the U.S. Supreme Court changed this unfortunate situation and heightened interest in, and concern about, expert testimony based on "junk science." In Daubert, the U.S. Supreme Court ruled that scientific expert

The Scientific Status of Projective Techniques

“…Experts who use these tests to evaluate minorities or non-Americans should be challenged to demonstrate that they have used appropriate norms, and that the interpretation of scores is valid for the group of clients in question. McCann (1998) argued that the CS does meet the Daubert criteria, whereas Grove and Barden (1999) reached the opposite conclusion.…”

Problems of the Comprehensive System for the Rorschach in Forensic Settings

“…How ever, in light of re cent de vel opments in the Ror schach con tro versy, such as sump tions ap pear ques tion able. New le gal anal y ses, based on more re cent in for mation, may lead to dif fer ent con clu sions (e.g., Grove & Barden, 1999). In clos ing, we sug gest that the fate of the Ror schach in fo ren sic con texts may hinge on fac tors other than its le gal ad mis si bil ity.…”

“…Al though McCann (1998) has ar gued that the CS (but perhaps not other Ror schach sys tems) meets the Daubert cri te ria,Grove and Barden (1999) have reached the op po site con clu sion. In part, such dis agree ments may sim ply rep re sent a time lag.…”

Whither the Rorschach? An analysis of the evidence.

“…Grove & Barden, 1999). Although we are confident dial the quality of Rorschach research will continue to improve, based on die history of Rorschach research and use, we doubt dial die present lack of requisite scientific evidence will influence most clinicians who use die Rorschach.…”