We Must Rethink the Role of Medical Expert Witnesses

Amitha Kalaichandran

Scientific American

Originally posted 5 May 21

Here are two excerpts:

The second issue is that the standard used by the courts to assess whether an expert witness’s scientific testimony can be included differs by state. Several states (including Minnesota) use the Frye Rule, established in 1923, which asks whether the expert’s assessment is generally accepted by the scientific community that specializes in this narrow field of expertise. Federally, and in several other states, the Daubert Standard of 1993 is used, which dictates the expert show their scientific reasoning (so the determination of validity is left to the courts), though acceptance within the scientific community is still a factor. Each standard has its drawbacks. For instance, in Frye, the expert’s community could be narrowly drawn by the legal team in a way that helps bolster the expert’s outdated or rare perspective, and the Daubert standard presumes that the judge and jury have an understanding of the science in order to independently assess scientific validity. Some states also strictly apply the standard, whereas others are more flexible. (The Canadian approach is derived from the case R v. Mohan, which states the expert be qualified and their testimony be relevant, but the test for “reliability” is left to the courts).

Third, when it comes to assessments of cause of death specifically, understanding the distinction between necessary and sufficient is important. Juries can have a hard time teasing out the difference. In the Chauvin trial, the medical expert witnesses testifying on behalf of the prosecution were aligned in their assessment of what killed Floyd: the sustained pressure of the officer’s knee on Floyd’s neck (note that asphyxia is a common cause of cardiac arrest). However, David Fowler, the medical expert witness for the defense, suggested the asphyxia was secondary to heart disease and drug intoxication as meaningful contributors to his death.

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Another improvement could involve ensuring that courts institute a more stringent application and selection process, in which medical expert witnesses would be required to demonstrate their clinical and research competence related to the specific issues in a case, and where their abilities are recognized by their professional group. For example, the American College of Cardiology could endorse a cardiologist as a leader in a relevant subspecialty—a similar approach has been suggested as a way to reform medical expert witness testimony by emergency physicians. One drawback, according to Faigman, is that courts would be unlikely to fully abdicate their role in evaluating expertise.

The info is here.

Research on Non-verbal Signs of Lies and Deceit: A Blind Alley

T. Brennen & S. Magnussen

Front. Psychol., 14 December 2020

https://doi.org/10.3389/fpsyg.2020.613410

Introduction

Research on the detection of lies and deceit has a prominent place in the field of psychology and law with a substantial research literature published in this field of inquiry during the last five to six decades (Vrij, 2000, 2008; Vrij et al., 2019). There are good reasons for this interest in lie detection. We are all everyday liars, some of us more prolific than others, we lie in personal and professional relationships (Serota et al., 2010; Halevy et al., 2014; Serota and Levine, 2015; Verigin et al., 2019), and lying in public by politicians and other public figures has a long and continuing history (Peters, 2015). However, despite the personal problems that serious everyday lies may cause and the human tragedies political lies may cause, it is lying in court that appears to have been the principal initial motivation for the scientific interest in lie detection.

Lying in court is a threat to fair trials and the rule of law. Lying witnesses may lead to the exoneration of guilty persons or to the conviction of innocent ones. In the US it is well-documented that innocent people have been convicted because witnesses were lying in court (Garrett, 2010, 2011; www.innocenceproject.com). In evaluating the reliability and the truthfulness of a testimony, the court considers other evidence presented to the court, the known facts about the case and the testimonies by other witnesses. Inconsistency with the physical evidence or the testimonies of other witnesses might indicate that the witness is untruthful, or it may simply reflect the fact that the witness has observed, interpreted, and later remembered the critical events incorrectly—normal human errors all too well known in the eyewitness literature (Loftus, 2005; Wells and Loftus, 2013; Howe and Knott, 2015).

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Is the rational course simply to drop this line of research? We believe it is. The creative studies carried out during the last few decades have been important in showing that psychological folklore, the ideas we share about behavioral signals of lies and deceit are not correct. This debunking function of science is extremely important. But we have now sufficient evidence that there are no specific non-verbal behavioral signals that accompany lying or deceitful behavior. We can safely recommend that courts disregard such behavioral signals when appraising the credibility of victims, witnesses, and suspected offenders. For psychology and law researchers it may be time to move on.

11th Circuit blocks South FL prohibitions on 'conversion therapy' for minors as unconstitutional

Michael Moline

Florida Pheonix

Originally posted 20 Nov 20

Here is an excerpt:

“We understand and appreciate that the therapy is highly controversial. But the First Amendment has no carve-out for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny,” Grant wrote.

Judge Beverly Martin dissented, pointing to condemnations of the practice by the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the American Psychoanalytic Association, the American Academy of Child and Adolescent Psychiatry, the American School Counselor Association, the U.S. Department of Health and Human Services, and the World Health Organization.

“Today’s majority opinion puts a stop to municipal efforts to regulate ‘sexual orientation change efforts’ (commonly known as ‘conversion therapy’), which is known to be a harmful therapeutic practice,” Martin wrote.

“The majority invalidates laws enacted to curb these therapeutic practices, despite strong evidence of the harm they cause, as well as the laws’ narrow focus on licensed therapists practicing on patients who are minors. Although I am mindful of the free-speech concerns the majority expresses, I respectfully dissent from the decision to enjoin these laws.”

Matt Staver, founder and chairman of Liberty Counsel, the conservative legal organization that represented two counselors who challenged the ordinance, welcomed the ruling.

“This is a huge victory for counselors and their clients to choose the counsel of their choice free of political censorship from government ideologues. This case is the beginning of the end of similar unconstitutional counseling bans around the country,” he said in a written statement.

The info is here.

Flawed science? Two efforts launched to improve scientific validity of psychological test evidence in court

Karen Franklin
forensicpsychologist Blog
Originally posted 15 Feb 20

Here is an excerpt:

New report slams "junk science” psychological assessments

In one of two significant developments, a group of researchers today released evidence of systematic problems with the state of psychological test admissibility in court. The researchers' comprehensive survey found that only about two-thirds of the tools used by clinicians in forensic settings were generally accepted in the field, while even fewer -- only about four in ten -- were favorably reviewed in authoritative sources such as the Mental Measurements Yearbook.

Despite this, psychological tests are rarely challenged when they are introduced in court, Tess M.S. Neal and her colleagues found. Even when they are, the challenges fail about two-thirds of the time. Worse yet, there is little relationship between a tool’s psychometric quality and the likelihood of it being challenged.

“Some of the weakest tools tend to get a pass from the courts,” write the authors of the newly issued report, "Psychological Assessments in Legal Contexts: Are Courts Keeping 'Junk Science' Out of the Courtroom?”

The report, currently in press in the journal Psychological Science in the Public Interest, proposes that standard batteries be developed for forensic use, based on the consensus of experts in the field as to which tests are the most reliable and valid for assessing a given psycho-legal issue. It further cautions against forensic deployment of newly developed tests that are being marketed by for-profit corporations before adequate research or review by independent professionals.

The info is here.

Courts Strike Down Trump’s ‘Refusal of Care’ Conscience Rule

Alicia Gallegos
mdedge.com
Originally posted 7 Nov 19

A federal court has struck down a Trump administration rule that would have allowed clinicians to refuse to provide medical care to patients for religious or moral reasons.

In a Nov. 6 decision, the U.S. District Court for the Southern District of New York vacated President Trump’s rule in its entirety, concluding that the rule had no justification and that its provisions were arbitrary and capricious. In his 147-page opinion, District Judge Paul Engelmayer wrote that the U.S. Department of Health & Human Services did not have the authority to enact such an expansive rule and that the measure conflicts with the Administrative Procedure Act, Title VII of the Civil Rights Act, and the Emergency Medical Treatment & Labor Act, among other laws.

“Had the court found only narrow parts of the rule infirm, a remedy tailoring the vacatur to only the problematic provision might well have been viable,” Judge Engelmayer wrote. “The [Administrative Procedure Act] violations that the court has found, however, are numerous, fundamental, and far reaching ... In these circumstances, a decision to leave standing isolated shards of the rule that have not been found specifically infirm would ignore the big picture: that the rulemaking exercise here was sufficiently shot through with glaring legal defects as to not justify a search for survivors [and] leaving stray nonsubstantive provisions intact would not serve a useful purpose.”

At press time, the Trump administration had not indicated whether they plan to file an appeal.

The info is here.

Cognitive Bias in Forensic Mental Health Assessment: Evaluator Beliefs About Its Nature and Scope

Zapf, P. A., Kukucka, J., Kassin, S. M., & Dror, I. E.
Psychology, Public Policy, & Law

Abstract

Decision-making of mental health professionals is influenced by irrelevant information (e.g., Murrie, Boccaccini, Guarnera, & Rufino, 2013). However, the extent to which mental health evaluators acknowledge the existence of bias, recognize it, and understand the need to guard against it, is unknown. To formally assess beliefs about the scope and nature of cognitive bias, we surveyed 1,099 mental health professionals who conduct forensic evaluations for the courts or other tribunals (and compared these results with a companion survey of 403 forensic examiners, reported in Kukucka, Kassin, Zapf, & Dror, 2017). Most evaluators expressed concern over cognitive bias but held an incorrect view that mere willpower can reduce bias. Evidence was also found for a bias blind spot (Pronin, Lin, & Ross, 2002), with more evaluators acknowledging bias in their peers’ judgments than in their own. Evaluators who had received training about bias were more likely to acknowledge cognitive bias as a cause for concern, whereas evaluators with more experience were less likely to acknowledge cognitive bias as a cause for concern in forensic evaluation as well as in their own judgments. Training efforts should highlight the bias blind spot and the fallibility of introspection or conscious effort as a means of reducing bias. In addition, policies and procedural guidance should be developed in regard to best cognitive practices in forensic evaluations.

Closing statements:

What is clear is that forensic evaluators appear to be aware of the issue of bias in general, but diminishing rates of perceived susceptibility to bias in one’s own judgments and the perception of higher rates of bias in the judgments of others as compared with oneself, underscore that we may not be the most objective evaluators of our own decisions. As with the forensic sciences, implementing procedures and strategies to minimize the impact of bias in forensic evaluation can serve to proactively mitigate against the intrusion of irrelevant information in forensic decision making. This is especially important given the courts’ heavy reliance on evaluators’ opinions (see Zapf, Hubbard, Cooper, Wheeles, & Ronan, 2004), the fact that judges and juries have little choice but to trust the expert’s self-assessment of bias (see Kassin et al., 2013), and the potential for biased opinions and conclusions to cross-contaminate other evidence or testimony (see Dror, Morgan, Rando, & Nakhaeizadeh, 2017). More research is necessary to determine the specific strategies to be used and the various recommended means of implementing those strategies across forensic evaluations, but the time appears to be ripe for further discussion and development of policies and guidelines to acknowledge and attempt to reduce the potential impact of bias in forensic evaluation.

The article is here.

The neuroscience of morality and social decision-making

Keith Yoder and Jean Decety
Psychology, Crime & Law
doi: 10.1080/1068316X.2017.1414817

Abstract
Across cultures humans care deeply about morality and create institutions, such as criminal courts, to enforce social norms. In such contexts, judges and juries engage in complex social decision-making to ascertain a defendant’s capacity, blameworthiness, and culpability. Cognitive neuroscience investigations have begun to reveal the distributed neural networks which interact to implement moral judgment and social decision-making, including systems for reward learning, valuation, mental state understanding, and salience processing. These processes are fundamental to morality, and their underlying neural mechanisms are influenced by individual differences in empathy, caring and justice sensitivity. This new knowledge has important implication in legal settings for understanding how triers of fact reason. Moreover, recent work demonstrates how disruptions within the social decision-making network facilitate immoral behavior, as in the case of psychopathy. Incorporating neuroscientific methods with psychology and clinical neuroscience has the potential to improve predictions of recidivism, future dangerousness, and responsivity to particular forms of rehabilitation.

The article is here.

From the Conclusion section:

Current neuroscience work demonstrates that social decision-making and moral reasoning rely on multiple partially overlapping neural networks which support domain general processes, such as executive control, saliency processing, perspective-taking, reasoning, and valuation. Neuroscience investigations have contributed to a growing understanding of the role of these process in moral cognition and judgments of blame and culpability, exactly the sorts of judgments required of judges and juries. Dysfunction of these networks can lead to dysfunctional social behavior and a propensity to immoral behavior as in the case of psychopathy. Significant progress has been made in clarifying which aspects of social decision-making network functioning are most predictive of future recidivism. Psychopathy, in particular, constitutes a complex type of moral disorder and a challenge to the criminal justice system.

Worth reading.....

The Impenetrable Program Transforming How Courts Treat DNA

Jessica Pishko
wired.com
Originally posted November 29, 2017

Here is an excerpt:

But now legal experts, along with Johnson’s advocates, are joining forces to argue to a California court that TrueAllele—the seemingly magic software that helped law enforcement analyze the evidence that tied Johnson to the crimes—should be forced to reveal the code that sent Johnson to prison. This code, they say, is necessary in order to properly evaluate the technology. In fact, they say, justice from an unknown algorithm is no justice at all.

As technology progresses forward, the law lags behind. As John Oliver commented last month, law enforcement and lawyers rarely understand the science behind detective work. Over the years, various types of “junk science” have been discredited. Arson burn patterns, bite marks, hair analysis, and even fingerprints have all been found to be more inaccurate than previously thought. A September 2016 report by President Obama’s Council of Advisors on Science and Technology found that many of the common techniques law enforcement historically rely on lack common standards.

In this climate, DNA evidence has been a modern miracle. DNA remains the gold standard for solving crimes, bolstered by academics, verified scientific studies, and experts around the world. Since the advent of DNA testing, nearly 200 people have been exonerated using newly tested evidence; in some places, courts will only consider exonerations with DNA evidence. Juries, too, have become more trusting of DNA, a response known popularly as the “CSI Effect.” A number of studies suggest that the presence of DNA evidence increases the likelihood of conviction or a plea agreement.

The article is here.

A Car Crash And A Mistrial Cast Doubts On Court-Ordered Mental Health Exams

Steve Burger

Side Effect Media: Public Health/Personal Stories

Originally posted September 26, 2017

Here is an excerpt:

Investigating a lie

Fink was often hired by the courts in Indiana, and over the last ten years had performed dozens of these competency evaluations. His scene-of-the-crash confession called into question not only the Loving trial, but every one he ever worked on.

Courts rely on psychologists to assess the mental fitness of defendants, but Fink’s story raises serious questions about how courts determine mental competency in Indiana and what system of oversight is in place to ensure defendants get a valid examination.

The judge declared a mistrial in Caleb Loving’s case, but Fink’s confession prompted a massive months-long investigation in Vanderburgh County.

Hermann led the investigation, working to untangle a mess of nearly 70 cases for which Fink performed exams or testing, determined to discover the extent of the damage he had done.

“A lot of different agencies participated in that investigation,” Herman said. “It was a troubling case, in that someone who was literally hired by the court to come in and testify about something … [was] lying.”

The county auditor’s office provided payment histories of psychologists hired by the courts, and the Evansville Police Department spent hundreds of hours looking through records. The courts helped Hermann get access to the cases that Albert Fink had worked on.

The article is here.

Physicians, Firearms, and Free Speech

Wendy E. Parmet, Jason A. Smith, and Matthew Miller
N Engl J Med 2017; 376:1901-1903
May 18, 2017

Here is an excerpt:

The majority’s well-reasoned decision, in fact, does just that. By relying on heightened rather than strict scrutiny, the majority affirmed that laws regulating physician speech must be designed to enhance rather than harm patient safety. The majority took this mandate seriously and required the state to show some meaningful evidence that the regulation was apt to serve the state’s interest in protecting patients.

The state could not do so for two reasons. First, the decision to keep a gun in the home substantially increases the risk of death for all household members, especially the risk of death by suicide, and particularly so when guns are stored loaded and unlocked, as they are in millions of homes where children live.  Second, the majority of U.S. adults who live in homes with guns are unaware of the heightened risk posed by bringing guns into a home.  Indeed, by providing accurate information about the risks created by easy access to firearms, as well as ways to modify that risk (e.g., by storing guns unloaded and locked up, separate from ammunition), a physician’s counseling can not only enhance a patient’s capacity for self-determination, but also save lives.

Given the right to provide such counsel, professional norms recognize the responsibility to do so. Fulfilling this obligation, however, may not be easy, since the chief impediments to doing so — and to doing so effectively — are not and never have been legal barriers. Indeed, the court’s welcome ruling does not ensure that most clinicians will honor this hard-won victory by exercising their First Amendment rights.

The article is here.

Who Decides When a Patient Can’t? Statutes on Alternate Decision Makers

Erin S. DeMartino and others
The New England Journal of Medicine
DOI: 10.1056/NEJMms1611497

Many patients cannot make their own medical decisions, having lost what is called decisional capacity. The estimated prevalence of decisional incapacity approaches 40% among adult medical
inpatients and residential hospice patients and exceeds 90% among adults in some intensive care
units.3,4 Patients who lack capacity may guide decisions regarding their own care through an
advance directive, a legal document that records treatment preferences or designates a durable
power of attorney for health care, or both. Unfortunately,the rate of completion of advance directives
in the general U.S. population hovers around 20 to 29%, creating uncertainty about who will
fill the alternate decision-maker role for many patients.

There is broad ethical consensus that other persons may make life-and-death decisions on
behalf of patients who lack decisional capacity. Over the past few decades, many states have enacted
legislation designed to delineate decisionmaking authority for patients who lack advance directives. Yet the 50 U.S. states and the District of Columbia vary in their procedures for appointing and challenging default surrogates, the attributes they require of such persons, their priority ranking of possible decision makers, and dispute resolution. These differences have important implications for clinicians, patients, and public health.

The article is here.

Junk Science on Trial

Jordan Smith
The Intercept
Originally posted May 6 2016

Here is an excerpt:

Expert Infallibility?

The Supreme Court's opinion makes little sense if you consider it critically. Under the court's reasoning, a conviction could be overturned if, for example, an eyewitness to a crime later realized he was wrong about what he saw. But if an expert who testified that DNA evidence belonged to one person later realized that the DNA belonged to someone else, nothing could be done to remedy that error, even if it was responsible for a conviction.

In the wake of that opinion, and with Richards's case firmly in mind, lawyers from across the state asked for a change in law -- one that would make it clear that a conviction can be overturned when experts recant their prior testimony as a result of scientific or technological advances.

Known as a junk science statute, the Bill Richards Bill changed the state penal code to address problematic forensic practices in individual criminal cases. Faulty forensics have been implicated in nearly half of all DNA exonerations, according to the Innocence Project, and in roughly 23 percent of all wrongful convictions, according to the National Registry of Exonerations. California's bill, which passed with bipartisan support, is only the second such statute in the country (following one in Texas), and its passage propelled the Richards case back to the Supreme Court for further consideration.

The article is here.

Growing use of neurobiological evidence in criminal trials, new study finds

By Emily Underwood
Science
Originally posted January 21, 2016

Here is an excerpt:

Overall, the new study suggests that neurobiological evidence has improved the U.S. criminal justice system “through better determinations of competence and considerations about the role of punishment,” says Judy Illes, a neuroscientist at the University of British Columbia, Vancouver, in Canada. That is not Farahany’s interpretation, however. With a few notable exceptions, use of neurobiological evidence in courtrooms “continues to be haphazard, ad hoc, and often ill conceived,” she and her colleagues write. Lawyers rarely heed scientists’ cautions “that the neurobiological evidence at issue is weak, particularly for making claims about individuals rather than studying between-group differences,” they add.

The article is here.

Is Anyone Competent to Regulate Artificial Intelligence?

By John Danaher
Philosophical Disquisitions
Posted November 21, 2015

Artificial intelligence is a classic risk/reward technology. If developed safely and properly, it could be a great boon. If developed recklessly and improperly, it could pose a significant risk. Typically, we try to manage this risk/reward ratio through various regulatory mechanisms. But AI poses significant regulatory challenges. In a previous post, I outlined eight of these challenges. They were arranged into three main groups. The first consisted of definitional problems: what is AI anyway? The second consisted of ex ante problems: how could you safely guide the development of AI technology? And the third consisted of ex post problems: what happens once the technology is unleashed into the world? They are depicted in the diagram above.

The entire blog post is here.