Forensic Experts and Attorneys: Communication Process

Abstract

When a mental health professional works with an attorney, there are several areas that need to be made clear. The first is admissibility of the expert’s testimony (what are the criteria for admissibility in this jurisdiction?). You also want to know about the culture in that community if you are an expert from out-of-town. Experts need to make it clear that they require a complete file of discovery and collateral material to review. The expert’s qualifications and how they may be challenged during voir dire or cross-examination need to be frankly discussed. An expert should be honest about their areas of expertise and areas in which they do not have such expertise. There needs to be a discussion of the rules of discovery that cover most expert opinions in that jurisdiction. Are you in a jurisdiction, which, like most, permit psychologists to work under attorney–client privilege? In other words, if you as an expert reach a conclusion unhelpful to the attorney who hired you, will that material be protected if you do not put it in writing to the attorney? A handful of states allow the state to have access to those materials if the opinion is not favorable to the defense in a criminal case and the expert will not be called to testify. If you are going to be called to testify, it is important to set time to discuss direct and cross-examination questions and how you might answer them. Further, there should be discussions with the retaining attorney about how to handle hypothetical questions, how to handle attacks on psychological testing, and how to handle assertions that the defendant may be malingering. The issue of whether or not you possess a medical degree will often come up in the challenge to your credentials and you should discuss ways to rebut these attacks as well. Finally, ground rules regarding addressing the ultimate issue should be discussed with the attorney.