Some attorneys have a preference for treating psychologists to provide expert testimony regarding forensic issues and may entice or instruct the psychologist to violate boundaries or engage in dual roles (Bush, et al., 2006). In this instance, the psychologist should assess potential for deviation from initial agreed upon role taking and consider the potential for a reduction in objectivity and effectiveness in addition to exploitation or harm to the parties involved (Bush, et al., 2006).
When taking the stand, it is recommended the psychologist pause before answering questions, allowing the retaining attorney to object (Bush, et al., 2006). The psychologist should forcefully present the data and reasoning that contribute to the opinion providing accurate information. Attorney’s may distort the expert opinion and it becomes the expert’s obligation to correct the misinformation by taking steps to minimize the misrepresentation or use of their work as it is unethical to “participate in attempts to avoid, deny, or subvert the presentation of evidence contrary to their own position” (Bush, et al., 2006, p. 115).
During questioning, the attorney may attempt to get the expert to argue in an effort to cause him or her to lose composure. It is important that the expert remain in a calm disposition with a polite demeanor to gain the trust and respect of others in the courtroom. Distractive tactics may cause the expert to lose track of thought while attempting to multi-task or avoid jury incorporation into their hearing which may discredit testimony or level the expert as avoiding scientific fact among the majority. For instance, the attorney may ask the expert to draw a picture while continuing questioning. It is important for the expert to clarify if the entire question was heard or any misunderstandings that could potentiate an inaccurate response.
Attorneys may also shift into damage control if they believe their case is weak, resorting to the above technique or creating diversions in an effort to make the expert testimony appear as a debate or contest (Bursztajn, M.D. & Brodsky, B.A, n.d.). The attorney tries to undercut the meaningfulness of the testimony. It is vital that the expert remain honest and objective while maintaining the ethical guidelines of the APA in the pursuit of justice (Bursztajn, M.D. & Brodsky, B.A, n.d.). The attorney attempts to achieve this by questionin through misleading facts or inferences, out-of-context quotes (prior writings / teachings may be questioned to validate a varying degree of position or change of position in regards to a similar case), compounded questions, silent treatment, interruption, sarcasm, or irrelevant questions (Bursztajn, M.D. & Brodsky, B.A, n.d.).
Attorneys may attempt to discredit character and credibility by emphasizing fees, motives, education/training, academic credentials, and how little experienced in this specific testimony the expert has (Bursztajn, M.D. & Brodsky, B.A, n.d.). If an attorney attempts to discredit an expert, he or she should remain calm and explain expenditures in a vagiue manner (Bursztajn, M.D. & Brodsky, B.A, n.d.). For Instance, if the cost of service was $2,000, explaining fees are $20.00/hour at 20 hour long visits. This explains the cost and avoids further probing about expenditures and avoids the attorney implicating excessive fees for “other” services. The attempt of the attorney is to point out any weaknesses in training and qualifications for the expert’s testimony (Bursztajn, M.D. & Brodsky, B.A, n.d.).
Bursztajn, M.D., H. J., & Brodsky, B.A, A. (n.d.). Ethical and effective testimony during direct examination and cross-examination post – daubert. Practicing Psychiatry Without Fear: Guidelines for Liability Prevention. Retrieved from http://www.forensic-psych.com/articles/artEthicalEffectiveTestimony.php
Bush, S. S., Connell, M. A., & Denny, R. L. (2006). Ethical practice in forensic psychology: A systematic model for decision making. http://dx.doi.org/10.1037/11469-001